Joint Statement on Sixth meeting of the India-Pakistan Judicial Committee on Prisoners to Pakistan

 

May 03, 2013

1. Members of the India-Pakistan Judicial Committee on Prisoners visited Pakistani Jails in Karachi, Rawalpindi and Lahore from April 26-May 1, 2013. The members of the Committee, Justice (Retd.) Mr A.S Gill and Justice (Retd) Mr. M.A Khan from the Indian side and Justice (Retd) Abdul Qadir Chaudhry, Justice (Retd.) Mr. Nasir Aslam Zahid and Justice (Retd.) Mian Muhammad Ajmal from Pakistan side visited the Jails.
2. A total number of 535 Indian prisoners including 483 fishermen (including 11 juveniles) and 8 civil prisoners, believed to be Indian nationals at District Jail Malir, Karachi, 8 Prisoners, believed to be Indian nationals at Adiyala Jail, Rawalpindi and 36 Prisoners, believed to be Indian nationals at Kot Lakhpat Jail, Lahore were presented before the Committee.
3. The Committee also visited Jinnah Hospital, Lahore and saw Indian prisoner Sarabjit Singh, who was admitted in the Intensive Care Unit of the Hospital on April 26, 2013 following an assault on him by few other inmates in the prison and is in a state of coma. The Committee interacted with the doctors about the prognosis of the case. The Committee noted the unfortunate incident of violent attacks on two Indian prisoners at Kot Lakhpat Jail, Lahore and recommended that Jail authorities to ensure adequate security for all Indian prisoners to avoid any such incident in the future; and would review the arrangements during its next visit to Kot Lakhpat Jail, Lahore. The Committee also recommended that detailed report of the official inquiry conducted by relevant Pakistani authorities on the assault on Sarabjit Singh on April 26, 2013 be shared with the members of the Committee at the earliest.
4. The Committee was also informed about escape of one under-trial Indian fisherman from District Jail, Malir, Karachi on February 11, 2013 and detention of the crew of the two Indian wooden vessels along with its cargo, off Pasni, Pakistan on April 18/19 by Pakistan authorities and requested Pakistan side to apprise about these two incidents to Indian side at the earliest.
5. The Committee noted with satisfaction that as per the Agreement on Consular Access signed on 21st May 2008 between the two countries, the list of prisoners was exchanged on 1st January 2013. The Committee appreciated the release of 684 Indian fishermen and 30 Indian civil prisoners by Pakistani authorities and 96 Pakistani fisherman and 59 Pakistani civil prisoners by Indian authorities since January 2012 till date.
6. On the conclusion of the visit, the Committee made the following recommendations:

a) The “Consular Access Agreement” of May 2008 signed between two governments be implemented in letter and spirit and consular access must be provided within three months of the arrest and not after completion of the prisoners’ prison term. Complete details of charges on the prisoners and a copy of court’s judgment of the sentence be shared in each case. The prisoners must be repatriated within one month of confirmation of national status and completion of sentences;it was noticed that in District Jail Malir, Karachi, there were 29 Indian prisoners who had completed their sentence more than a month ago; it was recommended that they be released and repatriated before May 17, 2013 and the two Governments should make all efforts that the time schedule is complied with strictly.

b) Consular access must be provided immediately to all those prisoners who have not been given consular access so far and the process of nationality confirmation should start immediately after consular access is provided;it was found that there were 459 fishermen and 10 such civil prisoners in the three jails for whom consular access was not provided. The Committee recommended providing consular access to all such prisoners and fishermen before May 17and the Pakistani side agreed for the same.

c) Consular access be provided to all prisoners/fishermen who are believed to be Indian, in Pakistani jails and vice versa, every year, at least four times, namely in the first week of February, first week of May, first week of August, and first week of November.

d) The Committee noted that several names of prisoners had been dropped from the successive lists of prisoners, believed to be Indian, which were shared by Pakistan side twice every year. It is recommended that Pakistan side provide a formal verification to Indian side and vice versa if any names were left out from the previous list of prisoners, so that each side could follow up on each case and discrepancy in list maintained by each side reduced.

e) A mechanism should be developed for compassionate and humanitarian consideration to be given to women, juvenile, mentally challenged, old aged and all those prisoners suffering from serious illness/permanent physical disability;Indian prisoners (like Pakistani prisoners in Karachi jail) should be allowed to make phone calls to their relatives in India at least once a month. The Indian prisoners appreciated the provision of basic necessities to them by the Prison and further demanded that they should be given some additional facilities. It is recommended that the existing facilities be continued and additional facilities required be provided by the Prison Authorities. Further, High Commission of India is allowed to supplementing any such requests for Indian prisoners.

f) It was also recommended that serious/terminally ill, mentally challenged and deaf and mute prisoners must be kept in appropriate hospitals/special institutions irrespective of confirmation of their national status and offence;it would noticed that 1 prisoner in District Jail, Malir, Karachi, 2 prisoners in Adiyala Jail, Rawalpindi and 20 prisoners in Kot Lakhpat Jail, Lahore were mentally challenged; additionally, copies of the FIR, medical report and photograph at the time of their detention, to be shared with the High Commission of India, so that renewed efforts could be made to confirm their nationality; moreover, effort should also be made to rule out that these prisoners are not Pakistani nationals.

g) While noting that mortal remains of Mr Chambail Singh, Indian prisoner at Kot Lakhpat Jail, was repatriated to India after a lapse of nearly 2 months after his death on January 15, 2013, the copy of the post mortem report has not yet been shared with Indian side. It was recommended that post mortem report of Mr Chambail Singh be shared with the Indian side without any further delay.

h) Prisoners involved in minor offences like violation of Foreigners’ Act, visa violation and inadvertent border crossing deserve compassion from both the sides.

i) The Committee noted that the respective courts must be requested for expeditious trial of all “under trial” prisoners. Respective High Commissions should create a panel of good repute lawyers/firms to pursue the cases of their prisoners in the local courts to locate, identify and defend such prisoners at all stages of their cases, if the prisoner(s) so wishes.

j) The Committee also endorsed the recommendations of the Home/Interior Secretary level talks held on 28-29 March 2011 at New Delhi to task the Pakistani Maritime Security Agency and Coast Guard of India to work on setting up a mechanism for release of inadvertent crossers (fishermen) and their boats, on the same lines as the inadvertent crossers on land; It was recommended that the fishermen should be repatriated by sea lanes along with their boats;a delegation of boat owners could visit Pakistan within the next 3 months to inspect all the Indian fishing boats detained in Pakistan so that decision could be taken regarding their return to India or sale in Pakistan, in consultation with concerned authorities and the same action be taken for return of Pakistani fishing vessels detained in India.

k) It was suggested that, subject to the confirmation of dates by both the sides through diplomatic channels, the next visit of the Committee to Indian jails will be arranged during the second half of September 2013 for at least 7- 9 days to ensure that the Committee is able to see each case in detail.

l) The Committee will review the action taken report on the earlier recommendations when the Committee meets next in India.

Justice (Retd.)Mr A.S Gill                                                             Justice (Retd.) Abdul Qadir Chaudhry
Justice (Retd.) Mr. M.A Khan                                                        Justice (Retd.) Mr. Nasir Aslam Zahid
                                                                           Justice (Retd.) and Mian Muhammad Ajmal

Lahore
April 30, 201

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MPs panel raps ministry for clearing 33 drugs without trials

New Delhi | Sunday, 2013 6:06:00 PM IST

Thirty-three new drugs were granted approval by the health ministry without clinical trials on Indian patients between January 2008 and October 2010, a parliamentary panel has found.

It a report tabled in parliament last week, the panel headed by parliament member Brajesh Pathak said: “This is yet another instance where the ministry, inspite of appreciating the serious problem the continued marketing of these 33 drugs may pose to Indian patients, has chosen to take no action to resolve it”.

The panel criticised the union health ministry for its “inaction” on certain alleged irregularities in clinical trials of drugs before their introduction in the country.

It also charged the officials involved in granting approval to these drugs with violation of law and “an intention to save the guilty”.

“The committee is shocked to note this dilly-dallying by the ministry on the matter, which could be affecting lives of lakhs of people in the country, who are consuming these drugs,” it said.

“The ministry agrees with the committee’s viewpoint about review of approvals to ensure safety of patients, fair play, transparency and accountability but instead of taking strict and immediate action in all proven cases of delinquency and omission and commission, it still continues to be in a state of profound procrastination,” the parliamentary standing committee on health and family welfare said in its 66th report.

It said that even after a lapse of more than seven months the three-member expert panel looking into this contentious matter has come out with “virtually nothing concrete” and observed that the government “intends to delay a decision by referring it to yet another committee”.

“These tactics have been, as stated at several places in this report, resorted to by the government to delay indefinitely the decisions and consequent actions that would be required to be taken against several officials and non-officials who have indulged in rampant acts of omission and commission while approving these drugs in gross violation of the law of the land.”

The committee has taken strong objections to these “dilatory tactics” and recommended immediate decision on these “proven gross violations, lest the health of the people is compromised irrevocably.”

—Indo-Asian News Service spc/ros/vt

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#India- Not a ‘safe’ issue: Disabled women and sexual violence #Vaw #disability

By Shampa Sengupta & Saptarshi Mandal

For the first time in the history of sexual violence law reform in India, issues pertaining to disabled women are being flagged as important items on the reform agenda. Sexual violence against disabled women is rampant, both within the supposedly safe zone of the ‘home’ – be it familial or custodial – and without. A small number of cases manage to get reported and legal actions are initiated in these. But most of these cases that reach the courts end in acquittal. Some of the reasons behind the low rate of conviction are common to all rape cases: faulty investigation by the police, biased conclusions reached based on medical examination of the victim and the accused, general attitude of distrust towards the victim and so on. But there are also factors that are specific to the cases of disabled women, such as not recording the testimony of the victim during the trial or recording the testimony without following the procedure laid down in law, which weaken the prosecution case at the appellate stage and result in acquittal.

The Justice Verma Committee, constituted by the central government to look into sexual assault law reform after the Delhi gang rape and murder last December, gave many of us working on these issues an opportunity to place some of these concerns before the government. The Committee responded positively and a large number of its recommendations addressed difficulties faced by disabled women in accessing the legal system and navigating through the trial process. Among other things, the Committee recommended that the assistance of interpreters or special educators be taken at the time of recording of the complaint by the police and also during the trial, that the process of identification of the accused be videographed and that disabled women be exempted from recounting their testimony once again at the time of cross-examination in cases of sexual assault. The recommendations also addressed issues of sexual abuse within institutions for the disabled and suggested oversight mechanisms for both state and privately run institutions. The recommendations of the Committee were welcomed by women’s groups and disability groups, including the ones that we are associated with.

However, when the government hurriedly introduced the Criminal Law Amendment Ordinance just three weeks before the upcoming session of parliament, we were faced with a dilemma. The Ordinance, which was promulgated purportedly to give effect to the recommendations of the Verma Committee, incorporated a majority of the disability-specific ones. But longstanding demands made by the women’s movements such as recognising marital rape, rape by security forces, compensation for rape victims, rejection of death penalty as a punishment and such others, which were recommended this time around as well, were left out of the Ordinance. As activist and researcher respectively, we were familiar with the travails of disabled women within the legal system in rape cases. Hence we were acutely aware of the relevance of the disability-specific clauses in the Ordinance and were happy to have been part of the process which had led to those changes. But we were also politically aligned with the women’s movement and thus found it difficult to endorse the Ordinance, which had left out issues which were fundamental to reconceptualising sexual offences in a manner that protected the rights of victims of sexual violence.

Leading from the personal/ political dilemmas regarding our position on the Ordinance, we wondered if the disability-specific recommendations were so readily accepted by the state because disability was seen as a safe, sympathy-inducing issue that posed no threat to the established orders. Demanding that marital rape be recognised as an offence on the other hand, definitely threatened the gendered/ sexualised ordering of heterosexual marriage and family. Was this the reason, we wondered, why the two movements rarely spoke to each other in course of the sexual assault debates, although they raised similar questions pertaining to the body and violence, power and vulnerability? We also wondered if the predominantly service-providing nature of the disability sector was in any way responsible for it being viewed as a ‘safe’ issue? If for the state, disability was a ‘safe’ issue and gender a ‘disruptive’ one, then what did it mean for movement politics – the business of building alliances and solidarities across sectors while engaging with the state? And at a much smaller level, what did it mean for our own work where we try to think through both these axes of power and vulnerability?

While we still do not have clear answers to any of these questions, we want to flag some cautionary notes on sexual violence against disabled women and the legal response to the same. Protecting the rights of the disabled against sexual assault would require us to think beyond provisions for interpreters and special educators, and engage with the domain of power and sexuality as well. In the context of sexual assault law reform, one issue that has created sharp divides between the state and the women’s rights groups, women’s rights groups and the queer and child rights groups, and among the women’s rights groups as well, is the proposition of making sexual offences gender-neutral. In the year 2000, the 172nd Report of the Law Commission mooted the idea of substituting the words ‘man’ and ‘woman’ in Sections 375 and 376 of the Indian Penal Code with the word ‘person’ so as to bring instances of same-sex sexual assault and sexual assault on male children by adults within the scope of the law. The idea was rejected by a wide section of the women’s movement which argued that sexual offences took place within a framework of gendered power relations and the legal system which tried these offences was heavily biased against women. These realities, it was argued, cannot be wished away just by changing words in the law. Similarly, a number of lesbian women’s groups expressed concerns that in the absence of any affirmative legal recognition for same-sex relationships, a gender-neutral rape provision could be used by disapproving families to lodge false complaints against same-sex lovers.

In the last 12 years, several developments have taken place: decriminalisation of adult same-sex sexual acts by the Delhi High Court in 2009, greater public awareness and discussion about child sexual abuse, and much more documented evidence of sexual violence against gay, transgender and transsexual persons. With the result that by the time the government introduced the Criminal Law Amendment Bill in June 2012, there was agreement on certain things among the groups involved in these debates. Thus most groups agreed that victims of sexual assault must be defined in a gender-neutral manner so as to provide protection to men and transgendered persons, in addition to women. But the perpetrator should be kept as male alone, as making the perpetrator gender-neutral would weigh heavily against women. Thus the 2012 Bill, which proposed gender-neutrality with respect to both the victim and the perpetrator, was opposed by women’s groups as well as some queer groups.

Cut to 2013, and the Verma Committee recommended that rape be retained as a gender-specific offence and provided separately for same-sex sexual assault. However, despite strong opposition, the Ordinance stuck to gender-neutrality with respect to both the victim and the perpetrator, and till the time a new Criminal Law Amendment Bill is introduced and passed to replace the Ordinance, it remains the operative law.

Surprisingly, disability groups have not been part of these debates, though making sexual offences gender-neutral clearly has consequences for disabled women. A stereotypical view of disabled women, particularly those with intellectual or psycho-social disability, is that they are unable to control their sexual urges. (1) Such a view, historically propagated by the medical establishment, is prevalent among the police, doctors and judges. In the course of handling cases of sexual assault on disabled women, we have often heard the authorities sympathising with the accused based on the belief that ‘such women’ are prone to making sexual advances on men, and later charge them with sexual assault. In 2001, in a case where a speech- and hearing-impaired girl was raped by two policemen inside a prison van in Kolkata, the officer-in-charge had said to one of us that activists should not follow up in such cases. When asked why, he said it was common knowledge that disabled girls were ‘sex starved’ and it was the girl who had in fact attacked the policemen. More recently, in the course of inquiring about a case of sexual assault on a female inmate by a male staffer at a Kolkata mental health institution in April 2012, the superintendent of the institution told one of us that he himself was scared of going inside the female ward for fear of being ‘molested’. He even asked us if there was any law to punish such women who first molest/tempt and then complain against hapless men.

In such a scenario where such attitudes are presented as medical ‘truths’ and where authorities put the blame on the victims and their lack of sexual discipline, what might be the implications of a gender-neutral rape law, where even women can be made assaulters and men their targets? Court judgments reveal how disabled women’s accounts of sexual assault are treated with suspicion by judges. For instance, in an Orissa High Court case the prosecutrix was deaf and mute and had not revealed to anyone that she had been raped; it was discovered only when she became pregnant. The court, while granting bail to the accused observed that a case of consent on the part of the woman could not be ruled out since (a) the woman was about 30 years old and still unmarried and (b) she could have at least communicated it to her mother knowing that her mother would naturally be anxious about her marriage. (2) Again in Meeraj Alam vs State of Bihar, the Patna High Court kept on repeating throughout the judgment that “the victim girl was a grown-up lady who was unmarried because of such infirmity and that her younger sister was already married, having children from before”. (3) How were the marital statuses of the victims of any relevance here, unless the judges were trying to implicitly suggest that the women in these cases were sexually mature and yet were not ‘getting any’ because they were disabled and hence one should be suspicious about their motive? Earlier a standard defence by an accused in a rape case used to be that the woman (disabled or not) had consented to the sexual intercourse, which then would be proved with reference to her dress, conduct, sexual history etc. Now, if the perpetrator is made gender-neutral, whenever a disabled woman complains of sexual assault, the alleged assaulter might file a counter-complaint that it was he who was raped by the woman. And we have good reasons to believe that given the widely held view regarding disabled women’s hypersexuality, such counter-allegations by men would be believed and sympathised with, by investigators and adjudicators.

Thus gender neutral definition of the perpetrator in sexual offences, as is currently the case, is not in the interest of disabled women. The government is preparing to introduce a Criminal Law Amendment Bill 2013 soon to replace the Ordinance. From media accounts, it seems the government is undecided about the formulation of the offence in the final Bill. But whatever it is, it is about time that disability groups appreciated the implications of it, took a stand on this issue and made it known to the State.

Endnotes
1) An equally prevalent stereotypical view is that disabled women are asexual.
2) Deepak Mahapatra vs State of Orissa, 107(2009)CLT93
3) 2008 CriLJ 4384

(Shampa Sengupta is an activist working on disability and gender issues, based in Kolkata. Saptarshi Mandal is a legal researcher based in New Delhi.)

Infochange News & Features, March 2013

 

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Our bodies, our selves #womenrights #gender #Vaw

 

 

 
NILANJANA S. ROY, The Hindu

 

Until we embrace the idea of consent in all relationships, including marriage, there can be no gender equality. Its absence makes discussions on sexual abuse meaningless

 

The man who was my abuser was a fine host, a good husband, a caring father, a respected elder whose generosity and kindness were as genuine as the fact of the abuse. These qualities were important, because they helped him conceal the abuse he carried out over a period of four years.

 

As a much-loved older relative, a close friend of my parents, he had unrestricted access to our house, and we visited him often. It was only at 12 that I began to feel uncomfortable. I didn’t know the term “child sexual abuse,” and had no words with which to describe my discomfort with the “games” he played — but I sensed there was something wrong about the silence that he demanded. When I was 13, I left Delhi for Calcutta, to study in that city, and left my abuser behind. But he didn’t forget, and when I came back to Delhi as a 17-year-old, he was there.

 

FIERCE, PROTECTIVE BARRIER

 

At 17, I knew now that he had no right to do this to me. When he sent poems, said that despite the four decades that separated us, we were supposed to “be together,” I broke my own silence — but only partly. I told my mother and my sister, and they formed a fierce, protective barrier between me and my abuser.

 

But the man who had started his abuse when I was nine was still invited to my wedding, because we were all keeping secrets, trying to protect one family member or another. (He was married, with grown children of his own.)

 

Years later, when my abuser was dying of old age and diabetes, I visited him. There was no space for a long conversation, but I did tell him that I would not forget, even if forgiveness was possible. The silence around the abuse festered and caused damage for years, until finally, in my thirties, the difficult, liberating process of healing began.

 

If this story saddens you, please think about this: my story is neither new nor rare, nor was the man who abused me a monster, or in any way out of the ordinary. According to a 2007 survey (the largest of its kind in India) conducted by the Ministry of Women and Child Welfare, over 53 per cent of Indian children have experienced some form of sexual abuse — a slightly higher percentage of boys than girls. I am only one of many.

 

As I learned to cope with the fallout from the childhood abuse, I made unexpected connections, found good friends, found strong mentors, found help, found my voice again and built a happier, more free life. If I bring up the abuse today, it’s to make a point about the importance of consent in the debate over gender equality in India.

 

Child abuse survivors are experts in two areas: we’ve taken a masterclass in the toxicity of silence and secret-keeping, and we have doctorates in our understanding of the importance of consent. It can take survivors, like rape survivors of either gender, years to reclaim a sense of ownership over their own bodies. The body is the site of so many violations, starting with the chief one: our abusers did not ask us for permission to use our bodies as they pleased. Children subjected to abuse learn one harsh lesson — their bodies are not their own.

 

RIGHT TO OFFER OR WITHHOLD

 

Over years, those of us who are fortunate enough to find counsellors and healers learn to reclaim our bodies. We learn as adults what children are supposed to know by instinct: we learn that we can be safe in our bodies, we learn to allow ourselves pleasure, to take care of ourselves, and most of all, we learn that we have the right to offer or withhold permission to other people, when they want access to our bodies, our selves.

 

In December 2012, a violent gang rape in Delhi took the life of a young woman and set off a raging debate over women’s freedoms and rape laws. In all the complex arguments we’ve heard in the last few months in India on rape, violence against women, we have not discussed consent as much as we need to. When we talk about rape, women’s bodies are often discussed as though they were property: how much freedom should the Indian family allow its daughters, wives, sisters, mothers?

 

Recently, rejecting the Verma Committee’s strong appeal that marital rape be made an offence under the law, the Standing Committee on Home said that (a) the Indian family system would be disturbed (b) there were practical difficulties and (c) marriage presumes consent.

 

These assumptions expose the toxicity at the heart of a certain view of the Indian family. For marriage to “presume consent,” you must assume that a woman gives up all rights to her body, to her very self, once she goes through the ceremony of marriage. You must also presume that a man is granted the legally sanctified right to access over his wife’s body, regardless of whether she finds sex unwelcome, frightening, painful, violent or simply doesn’t feel like it that day.

 

MEDIEVAL VIEW

 

This diminishes both genders, in its assumption that men are little more than lustful beasts, unable to restrain their libidos, that women are passive receptacles without desires of their own, forced to submit to demands for sex regardless of what they want. This is a medieval view of marriage and sex, and it is dismaying that Parliament appears to subscribe to it.

 

What is missing is the key question of consent — the consent of the woman, of any person in a sexual contract. All people — children, women, men — have a right to their own bodies.

 

In any equal partnership, the only possible basis for sex is on the mutual understanding that consent is an active process — to be offered freely and gladly, to be withdrawn just as freely. Underlying the principle of consent is the equally strong principle of respect; respect for one’s self, as much as for one’s partner. No one should be forced to share their bodies against their will.

 

On an active, day-to-day basis, consent embraces the idea that any woman or man is free to say ‘yes’ or ‘no’ to a sexual encounter, inside or outside marriage, regardless of whether they are, in the ugly phrase of the courts and police stations, “habituated to sex.”

 

Child abuse survivors and sexual violence survivors understand instinctively that true respect includes giving all people the right to say ‘no,’ the right to choose when they will be touched, and by whom.

 

If it is hard for Indian society to understand why everyone should have this right, then perhaps we should start with the basics.

 

You own your own body. Everyone has the right to live without their bodies being violated. Everyone has the right to demand that you ask for permission before you touch their bodies.

 

Perhaps in time, Parliament and the government might understand this. Justice Verma Committee and thousands of women trapped in marriages where they do not have the right to refuse sex certainly do understand. (For those who believe that marriage in India is a perfect, unsullied institution, read the statistics: over 40 per cent of women in marriages have reported domestic violence. That’s reported, not experienced. In addition, we rarely discuss the experiences of men who have gone through childhood sexual abuse — currently, the percentage is slightly higher for boys than girls, but men are doubly silenced, by shame and the demands of masculinity.)

 

FROM VICTIM TO SURVIVOR

 

My own journey from victim to survivor and then to a kind of freedom, took years. Even so, I had less to deal with than many whose stories are reported in Human Rights Watch’s recent study of child sexual abuse in India — no institutionalised abuse, no caste abuse, no extreme violence. In time, I became a writer, a listener, and a collector of stories. The shared stories of survivors allowed me to let go of shame — child abuse was too common and too widespread for that. I also learned that your memories, however dark, will not kill you, or prevent you from creating a better life.

 

Reclamation happened slowly, sometimes painfully. I was lucky to have the support of my partner, friends and great counsellors. But that journey started with believing that I did have the right to say ‘no,’ that my body did belong to me.

 

The debate in India over rape laws, particularly marital rape, is about such a simple thing: acknowledging that women (and men, and children) have a right over their own bodies. Why is this being treated as though it were a dangerous or radical idea? In a country that calls itself modern, as India does, it’s time we embraced the idea of consent, in all relationships.

 

Even though it’s so common — more than half of all adults in my generation of Indians have experienced some form of childhood sexual abuse — few survivors speak about their experiences because of the Indian family’s insistence on silence. That silence transferred the shame of the abuser’s act on to the child, and on to the family; it is powerful and crippling, and it actively enables abuse.

 

The silence around marital rape is strengthened when the Indian social and legal system refuses even to acknowledge that it exists; for an abuser, and for a rapist, these silences are frighteningly empowering.

 

Just as children have the right to ask that their bodies remain unviolated by the people they should be able to trust, a woman has the right to say, no, she does not give her consent. Even, and perhaps especially in, a relationship as intimate as marriage.

 

(Nilanjana S. Roy is a New Delhi-based writer)

 

 

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PRESS RELEASE- Gender Just, Gender Sensitive and NOT Gender Neutral Rape Laws #Vaw #Justice

Parliamentary Committee ignores Verma Committee

 

The report of the Parliamentary Standing Committee on the 2012 Criminal Law (Amendment) Bill as well as the 2013 Criminal Law (Amendment) Ordinance not only violates the letter and spirit of the Justice Verma Committee (JVC) recommendations but endangers and deepens women’s vulnerability in this country.

Representatives of women’s groups, democratic and human rights groups and activists are alarmed about the following major lacunae in current legislative protection to women, upheld by the Standing Committee report:

 

The Accused Must Be Male: One pernicious provision of the Ordinance 2013, upheld by the Committee report is blanket gender neutrality of the perpetrator of sexual harassment, assault and rape. Put simply: unlike in existing law where the accused is male, the Committee recommendations if enacted into a proposed new Bill, will make it possible for women to be charged with these offences. This is wholly unacceptable.

• The Reality of Rape: It is an act of violence that must be seen in the context of deeply entrenched power inequalities between men and woman in our society.  Gender neutral provisions only strengthen those already powerful, silencing the real victims. The police and legal system are part of this inequity and bias against women, evident in the huge impunity for rape in our country. Recommending that these laws be gender neutral makes mockery of this reality.
• The Chilling Effect: Apart from situations where women hold positions of statutory authority (like police officers, etc), in all other situations,  making the accused gender neutral means that complaints by women can be met with  counter-complaints to get them to withdraw. Given the current odds against women securing justice, the gender neutrality of accused in sexual violence laws, will have a deep chilling effect on women’s ability to even file complaints.
• Men, not boys: There is no basis to the argument that gender neutral laws allow young boys to be protected from abuse, because all young boys and girls are fully protected by gender neutral laws in the Protection of Children from Sexual Offences Act 2012.

 

Age Of Consent Must Remain 16: The Standing Committee report endorses the 2013 Ordinance, by raising the age of consent from 16 to 18, thus criminalizing the consent of young persons and exposing them to unjust imprisonment by forcing judges to take action merely on third party complaints, including khap panchayats. At the very least, any proposed new law should allow for a Young Person’s Defence, where consent of young persons between 16-18 years is taken into account if there is no more than 4 years age difference between two consenting parties.

 

Rape Within Marriage Must Be Recognized As An Offence: Marital status must not have any bearing on the right of a woman to say no! The law must recognize when sexual assault and rape occur within marriage. Also, current IPC provisions recognizing rape in the context of judicial separation must be replaced by simple separation, given that most separated couples do not get judicial decrees, but simply start living apart. Without this change the law makers are only sending a signal that even while living apart from her husband, a woman can be raped by him without any recourse to justice.

We are also deeply concerned by the Standing Committee’s silence on ending impunity for sexual assault by security forces. The existing statutory immunity for armed forces ‘acting in the line of duty’ surely cannot apply to sexual assault committed on women. No sanction should be required to proceed with prosecution of such personnel in sexual assault cases.

As the 2013 Criminal Law (Amendment) Ordinance and the report of the Parliamentary Standing Committee enter into Parliament for debate, we urge ALL PARTIES aligned with women’s rights to ensure that laws made in the wake of the brutal Delhi gang rape case do not leave women even more vulnerable than they already are.

Date: 6^th March 2013, signed by:

– Kalpana Mehta, Madhya Pradesh Mahila Manch, Indore

– Vrinda Grover, lawyer, New Delhi

– Farah Naqvi, women’s rights activist, New Delhi

– Kavita Krishnan, Secretary, AIPWA

– Madhu Mehra, Partners for Law in Development, New Delhi

– Chayanika Shah & Sandhya Gokhale, Forum Against Oppression of Women, Bombay

– Deepti Sharma, Saheli, New Delhi

– Kamayani Bali Mahabal,  Kractivist

– Nandini Rao, New Delhi

– Albeena Shakil

– Lesbians and Bisexuals in Action, Bombay- Lawyers Collective, New Delhi

– Kalpana Vishwanath & Suneeta Dhar, Jagori, New Delhi

– Gautam Bhan, New Delhi

– AALI, Lucknow

– Nirantar, New Delhi

– Karuna Nundy, Advocate, Supreme Court of India

– Seema Misra, Lawyer, New Delhi

– Ayesha Kidwai, GSCASH, JNU

– Prita Rani Jha, Peace and Equality Cell

– Women Against Sexual Violence and State Repression

 

PRESS RELEASE-#India- Don’t allow Govt to ram through land acquisition bill

 

CAMPAIGN FOR SURVIVAL AND DIGNITY

Contact: Q-1 Hauz Khas Enclave, New Delhi. Ph: 9873657844, forestcampaign@gmail.com

 

25.02.2013

To:

Smt. Meira Kumar

Hon’ble Speaker of the Lok Sabha

Lok Sabha, New Delhi

Sub: The Right to Fair Compensation and Transparency in Land Acquisition, Resettlement and Rehabilitation Bill – request that the same may be sent to a Standing Committee as it has been extensively modified after being tabled in Parliament, depriving the public and in particular affected communities of any possibility of comment

Dear Madam,

We are a national platform of adivasi and forest dwellers’ organisations from ten States. We write to bring to your notice that the government is seeking to ensure the swift passage of the Right to Fair Compensation and Transparency in Land Acquisition, Resettlement and Rehabilitation Bill and we understand that it may attempt to do so in the next day or two. In this context we wish to draw the following to your attention:

• The government reportedly intends to move more than 150 amendments to the original Bill.
• As per the amendments tabled in Parliament in December, these include many areas which were never addressed by either the Standing Committee’s report or the original Bill.
• In particular, we are dismayed to find that the amendments contain several provisions that adversely affect the rights of Scheduled Tribes and forest dwellers, and in particular permit the destruction of community forests on the payment of arbitrary cash compensation as well as undermining the powers of local bodies under the Forest Rights Act and the PESA Act. Many of these provisions were not in the original Bill and were certainly not recommended by the Standing Committee. Further, they also violate international law.

In light of the fact that the tribals and forest dwellers of this country have been the worst-hit victims of decades of illegal, brutal and inhuman displacement at the hands of the state, basic respect for their democratic rights demands that this Bill be referred to a parliamentary committee for a full review. The government cannot be permitted to use its majority to simply ram through legislations while making a mockery of parliamentary procedures and public consultation. This would be a tremendous disservice to the people of this country and in particular an injustice to those who have already suffered as a result of the callousness of the state.

We trust you will not permit this government to bypass democracy in order to perpetrate one more historical injustice against the tribals and forest dwellers of this country.

Sincerely,

(On behalf of the Convening Collective)

 

__._,_.___

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PRESS RELEASE- #India – President urged not to Sign the Ordinance by Women’s Organizations

 

New Delhi, 2 Feb 2013:  We, as representatives of women’s organizations, civil society groups, and activists committed to women’s rights, convey our strong opposition to the Government’s decision to move an Ordinance on the criminal law amendments related to sexual violence. We call upon the President of India to not sign such an Ordinance.

Information in the public domain, through media sources, reveals that an Ordinance on amendments to sexual assault law was cleared by the Cabinet yesterday, on February 1, 2013 – about 20 days before the next parliamentary session. We are alarmed at the complete lack of transparency displayed by the Government in proposing an Ordinance as an emergency measure.  We wonder what objective and purpose will be served by such a hasty non-transparent measure – less than 3 weeks before the parliamentary session, since the proposed law will not retrospectively apply to the Delhi gang rape case.

We demand transparency and due process in law making. We demand that the Parliamentary process, including the Standing Committee process be upheld, for this is the place where we, as citizens of this country, have the right to be heard.

“An Ordinance like this, implemented by stealth, only serves to weaken our democracy” notes Vrinda Grover, a human rights lawyer. Emphasizing this concern, Madhu Mehra, a women’s rights lawyer added ,”An Ordinance like this betrays the trust of scores of Indian men and women, who marched the streets of Delhi and other cities demanding an end to impunity for Sexual Violence.”.

Women’s Organizations are shocked further shocked to learn that the JVC report has not been considered fully or even partially, neither in letter nor in spirit in the content of this Ordinance.

“We are told that virtually all the recommendations that we and others had hailed as signs of a paradigm shift in understanding violence against women; all the recommendations that can actually strike at the heart of impunity – have been dropped” stated activists, Kavita Krishnan, Farah Naqvi and Sunita Dhar.

It was pointed out that these include – recognition in law of marital rape, new provisions on the offence of breach of command responsibility, non-requirement of sanction for prosecuting a member of the security forces accused of sexual assault and rape, provision for trying them under ordinary criminal law for sexual crimes; and change in definition of consent to any sexual act.

Furthermore, the content of the Ordinance to our knowledge has introduced provisions that were strongly rejected by the Justice Verma Committee, including the death penalty. “We are shocked to learn that the Ordinance introduces a gender neutral perpetrator for sexual assault, suggesting that both women and men could potentially be charged for the offence. Rape as we know it is a crime largely defined as male violence against women, with absolutely no evidence of women as perpetrators. This is in disregard of the Justice Verma recommendations too, and is totally unacceptable”, noted Madhu Mehra.

Women’s groups have been demanding comprehensive amendments in criminal law related to sexual violence for over two decades, and have expressed our endorsement of the Justice Verma Committee Report. We have made oral and written submissions to the Justice Verma Committee and our voices and concerns were reflected in the Committee’s report. “We again reiterate our call to the Government of India to implement the recommendations of the report comprehensively, in letter and spirit” noted Vrinda Grover. We congratulate the Justice Verma Committee for completing the report in record time without compromising on consultations, dialogue, due process and transparency.
“Even as we have called upon the Government of India to implement the Committee’s report with alacrity, we emphasise that such implementation not be at the cost of due process, or selective adoption of the Committee’s recommendations” stated Farah Naqvi.

————————————-

For more details please contact:

Padmini: 09810481807 and Farah: 9560511667

WATCH NDTV VIDEO COVERAGE OF PRESS CONFERENCE

http://www.ndtv.com/video/player/news/women-s-groups-reject-ordinance-on-rape-laws-urge-president-not-to-sign-it/263810

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#India- Activists decry linking maternity benefits to population control #Vaw #Reproductiverigghts

New Delhi, Jan 26 — Civil society groups have expressed shock at a parliamentary panel’s recommendation to restrict the nutritional support under government schemes to only two children per family and to disqualify mothers of more children from maternity benefits.

 

Debunking the need for coercive measures to promote population stabilisation, A.R. Nanda, former secretary, department of family welfare, said that India’s population growth has already slowed down considerably and the figures from the 2011 Census show that the decadal growth at 17.64 percent is the lowest in the last 50 years.

 

Reviewing the National Food Security Bill, the parliamentary standing committee on food, consumer affairs and public distribution has recommended that maternity benefits under government schemes should be restricted to only the first two children. The steps to link entitlements to population control or family size need to stop and emphasis should be laid on providing women with adequate nutritional supplements which should be extended to women from socially and economically weaker backgrounds, Nanda said on the sidelines of a function here on girl child.

 

Jashodhara Dasgupta from National Alliance for Maternal Health and Human Rights (NAMHHR) said that according to National Family Health Survey III, nearly 60 per cent of the most vulnerable women of the age group of 15-49 years have more than two children. “They will be disqualified from maternity benefits; these include the Scheduled Castes, Scheduled Tribes, the poorest and those with no education,” Dasgupta was quoted as saying in a release. As such, disqualifying vulnerable women from maternity benefits just because they give birth to more than two children is a cruel denial of their reproductive and economic rights, she said. Maternity benefits and support are most essential for the well being of poor women and for the future generation of our country, she said. There is an urgent need to delink the supplementary nutritional programmes and maternity entitlements from the two-child norm, else the “inclusive agenda” of the government will be defeated, she added.

 

The activists strongly recommended that maternity benefits and nutritional support schemes should be made unconditional. There should be no restrictions in access to these public support programmes with regard to age or parity.

 

The government should ensure minimum support facilities at work, including creches, wage compensation, nursing breaks and adequate maternity leave for exclusive breast feeding, for poor women in the country, they said.

 

Abhijit Das, convenor of the National Coalition Against Two-Child Norm and Coercive Population Policies, New Delhi, expressed “serious concerns that such a disqualification would be gender-insensitive”.
The recommendations have also been objected to by the National Commission for Protection of Child Rights (NCPCR).

 

The parliamentary standing committee’s other recommendations, which include diluting the existing commitments of the government to provide nutritional security to children, have also drawn criticism from the civil society as well as the NCPCR.
IANS

 

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#India -Republic based on illegal UID / NPR database will be totalitarian #Aadhaar

Saturday, January 26, 2013

Republic based on illegal UID/NPR database will be totalitarian

 

200 px (Photo credit: Wikipedia)

Position Paper

January 2013

Unions join Parliamentary Committee & civil liberties groups to oppose UID/Aadhaar

 

Republic based on illegal UID/NPR database will be totalitarian

 

Apprehensions of Parliamentary Standing Committee on Finance Proven Right

 

Merger of electoral database with UID/NPR database, an invitation to despotism

 Trade Unions have joined the civil liberties groups and the Parliamentary Standing Committee on Finance that rejected the National Identification Authority of India (NIDAI) Bill, 2010 for giving post dated legal mandate to Unique Identification Authority of India (UIDAI) to oppose Unique Identification (UID)/Aadhaar Number based on illegal and illegitimate collection of biometric data.

The opposition of Trade Unions against the retirement fund body Employees’ Provident Fund Organization (EPFO)’s autocratic decision to make submission of UID/Aadhaar mandatory for its over 50 million existing subscribers and new members has robust legal, legislative and citizens support. EPFO has issued an order to its field staff to mandatorily ask for UID/Aadhaar numbers from new members joining the scheme from March 1, 2013 and existing members by June 30, 2013.

EPFO trustees Bhartiya Majdoor Sangh General Secretary Baij Nath Rai and All India Trade Union Congress Secretary D L Sachdev  have expressed their opposed it questioning EPFO’s use of UID/Aadhaar number as unique account number of its members. Hind Mazdoor Sabha Secretary A D Nagpal has also expressed his reservations.

Initiatives based on UID/Aadhaar number and the UID/Aadhaar number has been rejected by the multi-party Parliamentary Standing Committee (PSC) on Finance comprising of Yashwant Sinha, Shivkumar Udasi Chanabasappa, Jayant Chaudhary, Harishchandra Deoram Chavan, Bhakta Charan Das, Gurudas Dasgupta, Nishikant Dubey, Chandrakant Khaire, Bhartruhari Mahtab, Anjan Kumar Yadav M, Prem Das Rai, Dr. Kavuru Sambasiva Rao, Rayapati S. Rao, Magunta Sreenivasulu Reddy, Sarvey Sathyanarayana, G.M. Siddeswara, N. Dharam Singh, Yashvir Singh, Manicka Tagore, R. Thamaraiselvan, Dr. M. Thambidurai, S.S. Ahluwalia 24.  Vijay Jawaharlal Darda, Piyush Goyal, Raashid Alvi, Moinul Hassan, Satish Chandra Misra, Mahendra Mohan, Dr. Mahendra Prasad, Dr. K.V.P. Ramachandra Rao and Yogendra P. Trivedi.

In its report the PSC said, “The Committee have carefully examined the written information furnished to them and heard the views for and against the National Identification Authority of India (NIDAI) Bill from various quarters such as  the  Ministry of Planning, the Unique Identification Authority of India (UIDAI), the National Human Rights Commission (NHRC) and experts.  The clearance of the Ministry of Law & Justice for issuing aadhaar numbers, pending passing the Bill by Parliament, on the ground that powers of the Executive are co-extensive with the legislative power of the Government and that the Government is not debarred from exercising its Executive power in the areas which are not regulated by the legislation does not satisfy the Committee.  The Committee are constrained to point out that in the instant case, since the law making is underway with the bill being pending, any executive action is as unethical and violative of Parliament‟s prerogatives as promulgation of an ordinance while one of the Houses of Parliament being in session.”

It observed in its recommendations, “The Committee observe that prima facie the issue of unique identification number, which has been referred to as “aadhaar number” to individuals residing in India and other classes of individuals under the Unique Identification (UID) Scheme is riddled with serious lacunae and concern areas which have been identified as follows:-

a)      The UID scheme has been conceptualized with no clarity of purpose and leaving many things to be sorted out during the course of its implementation; and is being implemented in a directionless way with a lot of confusion.  The scheme which was initially meant for BPL families has been extended for all residents in India and to certain other persons.  The Empowered Group of Ministers (EGoM), constituted for the purpose of collating the two schemes namely, the UID and National Population Register (NPR), and to look into the methodology and specifying target for effective completion of the UID scheme, failed to take concrete decision on important issues such as (a) identifying the focused purpose of the resident identity database; (b) methodology of collection of data; (c) removing the overlapping between the UID scheme and NPR; (d) conferring of statutory authority to the UIDAI since its inception; (e) structure and functioning of the UIDAI; (f) entrusting the collection of data and issue of unique identification number and national identification number to a single authority instead of the present UIDAI and its reconciliation with National Registration Authority;

b)      The need for conferring of statutory authority to the UIDAI felt by the Government way back in November, 2008, but was deferred for more than two years for no reason.   In this regard,  the Ministry of Planning have informed the Committee that till the time Parliament passes the NIDAI Bill, crucial matters impinging on security and confidentiality of information will be covered by the relevant laws.  The Committee are at a loss to understand as to how the UIDAI, without statutory power, could address key

issues concerning their basic functioning and initiate proceedings against the defaulters and penalize them;

c)      The collection of biometric information and its linkage with personal information of individuals without amendment to the Citizenship Act, 1955 as well as the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, appears to be beyond the scope of subordinate legislation, which needs to be examined in detail by Parliament;

d)     Continuance of various existing forms of identity and the requirement of furnishing „other documents‟ for proof of address, even after issue of aadhaar number, would render the claim made by the Ministry that aadhaar number is to be used as a general proof of identity and proof of address meaningless;

e)      In addition to aadhaar numbers being issued by the UIDAI, the issuance of smart cards containing information of the individuals by the registrars is not only a duplication but also leads to ID fraud as prevalent in some countries; and

f)       The full or near full coverage of marginalized sections for issuing aadhaar numbers could not be achieved mainly owing to two reasons viz. (i) the UIDAI doesn‟t have the statistical data relating to them; and (ii) estimated failure of biometrics is expected to be as high as 15% due to a large chunk of population being dependent on manual labour.

The PSC report observed, “The Committee are also unhappy to observe that the UID scheme lacks clarity on many issues such as even the basic purpose of issuing “aadhaar” number.  Although the scheme claims that obtaining aadhaar number is voluntary, an apprehension is found to have developed in the minds of people that in future, services / benefits including food entitlements would be denied in case they do not have aadhaar number.   It is also not clear as to whether possession of aadhaar number would be made mandatory in future for availing of benefits and services.   Even if the aadhaar number links entitlements to targeted beneficiaries, it may not ensure that beneficiaries have been correctly identified.  Thus, the present problem of proper identification would persist.”

It also observed, “Though there are significant differences between the identity system of other countries and the UID scheme, yet there are lessons from the global experience to be learnt  before proceeding with the implementation of the UID scheme, which the Ministry of Planning have ignored completely.  For instance, the United Kingdom shelved its Identity Cards Project for a number of reasons, which included:- (a) huge cost involved and possible cost overruns; (b) too complex; (c) untested, unreliable and unsafe technology; (d) possibility of risk to the safety and security of citizens; and (e) requirement of high standard security measures, which would result in escalating the estimated operational costs.  In this context, the Report of the London School of Economics‟ Report on UK‟s Identity Project inter-alia states that “…..identity systems may create a range of new and unforeseen problems……the risk of failure in the current proposals is therefore magnified to the point where the scheme should be regarded as a potential danger to the public interest and to the legal rights of individuals”.  As these findings are very much relevant and applicable to the UID scheme, they should have been seriously considered.”

“The Committee note that the Ministry of Planning have admitted  that (a) no committee has been constituted to study the financial implications of the UID scheme; and (b) comparative costs of the aadhaar number and various existing ID documents are also not available.  The Committee also note that Detailed Project Report (DPR) of the UID Scheme has been done much later in April, 2011.  The Committee thus strongly disapprove of the hasty manner in which the UID scheme has been approved.  Unlike many other schemes / projects, no comprehensive feasibility study, which ought to have been done before approving such an expensive scheme, has been done involving all aspects of the UID scheme including cost-benefit analysis, comparative costs of aadhaar number and various forms of existing identity, financial implications and prevention of identity theft, for example, using hologram enabled ration card to eliminate fake and duplicate beneficiaries.

“The Committee are afraid that the scheme may end up being dependent on private agencies, despite contractual agreement made by the UIDAI with several private vendors.  As a result, the beneficiaries may be forced to pay over and above the charges to be prescribed by the UIDAI for availing of benefits and services, which are now available free of cost.”

“The Committee find that the scheme is full of uncertainty in technology as the complex scheme is built up on untested, unreliable technology and several assumptions.  Further, despite adverse observations by the UIDAI‟s Biometrics Standards Committee on error rates of biometrics, the UIDAI is collecting the biometric information.   It is also not known as to whether the proof of concept studies and assessment studies undertaken by the UIDAI  have explored the possibilities of maintaining accuracy to a large level of enrolment of 1.2 billion people.  Therefore, considering the possible limitations in applications of technology available now or in the near future, the Committee would believe that it is unlikely that the proposed objectives of the UID scheme could be achieved.”

“The Committee feel that entrusting the responsibility of verification of information of individuals to the registrars to ensure that only genuine residents get enrolled into the system may have far reaching consequences for national security.  Given the limitation of any mechanism such as a security audit by an appropriate agency that would be setup for verifying the information etc., it is not sure as to whether complete verification of information of all aadhaar number holders is practically feasible; and whether it would deliver the intended results without compromising national security.”

The PSC report which has been submitted to the Parliament is available at

http://164.100.47.134/lsscommittee/Finance/42%20Report.pdf

In a related development it was reported on October 6, 2011 that Gujarat Chief Minister Narendra Modi wrote to the Prime Minister questioning the need for National Population Register (NPR) by Registrar General of India & Census Commissioner, Union Ministry of Home Affairs. Gujarat stopped collection of biometric data for creation of the NPR.

In his letter to the Prime Minister, Modi raised objections over both the Unique Identification Authority of India (UIDAI), which is creating Unique Identification (UID)/Aadhaar Number and Registrar General of India, which is creating the NPR, collecting biometric data.

In his letter to Manmohan Singh, Modi wrote, “there is no mention of capturing biometrics in the Citizenship Act or Citizenship Rules 2009”. He added, “In the absence of any provision in the Citizenship Act, 1955, or rules for capturing biometrics, it is difficult to appreciate how the capture of biometrics is a statutory requirement. Photography and biometrics is only mentioned in the Manual of Instructions for filling up the NPR household schedule and even in that there is no mention of capturing the Iris”.

After Gujarat stopped collection of biometric data, the then Union Minister of Home Affairs, P Chidambaram sent a letter to Modi in August 2011 pointing out that creation of the NPR was a “statutory requirement” under the Citizenship Act, 1955, and “once initialized, has to be necessarily completed”. The Union Minister of Home Affairs had also requested the CM to instruct state government officers to cooperate in creation of the NPR.

This was when the entire media, the citizens and the political class was hoodwinked into believing that there was a rift between Nandan Manohar Nilekani’s UIDAI under Planning Commission and Dr C Chandramouli’s NPR under Union Minsitry of Home Affairs.

It appears that in order to reveal Modi chose to side with UIDAI in an apparent rebuff to Chidambaram. Modi kicked off UID/Adhaar project in Gujarat on May 1, 2012 by giving his biometric information for his UID number and enrolled under the UIDAI project. Strangely, Modi did not object to his biometric identification under UID as he did with regard to NPR. Modi did so despite the fact that Yashwant Sinha headed Parliamentary Standing Committee on Finance has rejected the UID project and the UID Bill in its report to the Parliament on December 13, 2012. However, it may be noted that one sentence of its report appears to endorse biometric NPR. Is it a case of Sinha trying to side with Chidambaram? It appears that Modi has been taken for ride with regard to the UID/Aadhaar and Sinha with regard to NPR as they failed to see through the strategy.

Now it is clear that the staged rift that was created between Home Ministry and Planning Commission’ UIDAI on UID and NPR was motivated and was meant to take legislatures, citizens, States and media for a ride.

The Terms of Reference No. 8 of Planning Commission’s notification dated January 28, 2009 that created Unique Identification Authority of India (UIDAI) in pursuance of the 4th meeting of the Empowered Group of Ministers, states, “Take necessary steps to ensure collation of NPR and UID (as per approved strategy)”.

The rift that led to division of work between UIDAI and Home Ministry’s Registrar General of India & Census Commissioner and the movement of P Chidambaram from Home Ministry to Finance Ministry appears to be as per the approved strategy. The strategy document prepared by WIPRO Ltd is missing.

As per the communication from UIDAI dated July 2, 2010 which states that “The decision for appointment of Chairman was conveyed by the Cabinet Secretariat” The Planning Commission’s notification (which was to be published in the Gazette of India) dated July 2, 2009 reveals that “the competent authority has approved the appointment of Nandan Nilekani, Co-Chairman, INFOSYS as Chairperson, Unique Identification Authority of India, in the rank and status of a Cabinet Minister. Nilekani will hold appointment for an initial tenure of five years”. The notification shows that a copy was marked to Nilekani, CEO, President & MD, Infosys Technologies Ltd., Corporate Headquarters besides the Secretary Generals of Secretariats of Lok Sabha and Rajya Sabha. This was before the UID Bill (The National Identification Authority of India Bill, 2010) was introduced in the Parliament and rejected by the Parliamentary Standing Committee on Finance in its report to the Parliament in December 13, 2011.

It is noteworthy that National Population Register (NPR) for Multi-purpose Identity Card (MNIC), Unique Identification /Aadhaar Number, UID/Aadhaar-Enabled E-payment system, Radio Frequency Identification (RFID), DNA Profiling, National Intelligence Grid (NATGRID), National Counter Terrorism Centre (NCTC), National Information Utility, Public Information Infrastructure and Innovations, Electronic Services Delivery Law, amendments in Information Technology Act, Land Titling Bill, unified E payment infrastructure etc are related and are in line with the policy of North Atlantic Treaty Organization (NATO) and World Bank’s eTransform Initiative. None of the above programmes and subordinate legislations have legislative mandate.

Given a choice between leakage or theft of citizens database of sensitive personal information and leakage of public distribution system and delivery social welfare services what would be be chosen and which can be plugged more easily. Recently, database of Greece has been stolen as per Reuters and the database of Pakistan and Egypt has been handed over to US as per the diplomatic cables leaked by Wikileaks.

In UID/Aadhaar Enrolment Form, Column 9 reads: “I have no objection to the UIDAI sharing information provided by me to the UIDAI with agencies engaged in delivery of welfare services”. In front of this column, there is a “Yes” and “No” option. Irrespective of what option residents of India exercise (which is being ticked automatically by the enroler in any case as of now), the fact is this information being collected for creating Centralized Identity Data Register (CIDR) and NPR (column 7) will be handed over to biometric technology companies like Satyam Computer Services/Sagem Morpho, L1 Identities Solutions and Accenture Services of all shades who have already been awarded contracts.

A letter written to Election Commission of India and Parliamentary Standing Committee (PSC) on Finance that has rejected the UID Bill underlined the ILLEGALITY OF MERGER OF UID-AADHAAR-NPR LINKED CONTRACTS, VOTER ID, EVM, CASH TRANSFER ETC was shared with the media persons. But the way BJP has reacted to UID based cash transfer in a very procedural manner instead of engage with it in a substantive way appears to signal witting or unwitting collusion between both BJP and Congress with regard to UID and NPR otherwise how is it that all the NDA and UPA ruled States are implementing UID and NPR quite obediently. The non-NDA and non-UPA parties have failed to apply their legal minds to it the way they did in the case of National Counter Terrorism Centre (NCTC). So far they have failed to appreciate that UID, NPR, NCTC and National Intelligence Grid is linked and is being linked with Census and Voters’ database.

Unmindful of threat to federalism most States including Jharkhand, Bihar, Odisha, Tripura, Tamil Nadu, West Bengal  have signed a MoU with UIDAI. Surprisingly, the States which were quite vocal about threats to federal structure from Union Home Ministry‘s National Counter Terrorism Centre (NCTC) and National Intelligence Grid (NATGRID) that integrates 21 sets of databases have been caught unawares by the creation of UID’s Centralized Identities Data Register (CIDR) disregarding the fact that Planning Commission’s CIDR and Home Ministry’s National Population Register (NPR) is going to be converged.

It is indeed unfortunate that the State Governments and Central Government has chosen to listen to consultants who are more interested in making a quick sale of their biometric, identification and surveillance technology products. The ways in which compromised biometrics can be of inordinate danger to the person whose biometrics have been stolen due to mishandling or improper understanding of the ways in which digital systems can be misused and abused has been visualized in an article authored by a pioneer in biometric identity systems merits attention. The same has been published in The New York Times on November 10, 2012.

UID- Aadhaar based cash transfer scheme anti poor. The claim that Central Government’s UID -Aadhaar will result in the savings is suspect unless Prime Minister’s Office and Planning Commission study revealed the total budget UID-Aadhaar project. The Prime Minister’s Office must declare its total budget Aadhaar project before disbursing cash transfer through UIDAI platform for all major government schemes.

UID-Aadhaar based cash transfer is being started off when bank accounts still don’t exist for everyone, especially those who the government claims to want to target; when the institution of banking correspondents has been tried and has admittedly failed; when the proof of concepts on biometrics has demonstrated that it is still an under-tested technology; when even the projected coverage of the aadhaar is half the population (600 million) by 2014. The government is impatient to shift to cash transfer as is being recommended by intergovernmental banking agencies such as the World Bank; and the evidence of probable failure is not to be heeded in this haste. The Bank’s paper dated October 2012 reveals that cash transfer and vote purchase is linked.

A “Strategic Vision on the UIDAI Project” was prepared and submitted to this Committee by M/S Wipro Ltd (Consultant for the design phase and program management phase of the Pilot UIDAI project). It envisaged the close linkage that the UIDAI would have to the electoral database. The Committee also appreciated the need of a UIDAI Authority to be created by an executive order under the aegis of the Planning Commission to ensure a pan-departmental and neutral identity for the authority and at the same time enable a focused approach to attaining the goals set for the XI Plan. The Seventh Meeting of the Process Committee on 30 August 2007 decided to furnish to the Planning commission a detailed proposal based on the resource model for seeking its “in principle” approval.  At the same time, the Registrar General of India was engaged in the creation of the National Population Register and issuance of Multi-purpose National Identity Cards to citizens of India. Reference: http://uidai.gov.in/about-uidai.html

It is noteworthy that Election Commission’s website carries a power point presentation that concludes by stating ‘Makes us UID ready’. It has come to light that Union Home Ministry has sought a proposal from the Election Commission of India and the Unique Identification Authority of India (UIDAI), will ensure that UID-Aadhaar does not duplicate the data that is collected and used by the Election Commission. Dr S Y Quraishi as Chief Election Commissioner (CEC) revealed to a newspaper that, “With the UID project already completing the biometric process under its umbrella, by scanning fingerprints and retina scan, we have approached the Centre to merge the Election ID cards with UID.” He added, “We will have the unique identification numbers provided by the UID printed on the election IDs…With over 750 million people registered with the EC, we have the largest data base to help the UID project.” It may be noted that the Nilekani had approached the Election Commission for accessing their data base and voters list for preparing the UID database.

It is quite disturbing that the Parliament has not been informed so far about the ongoing merger of UID, NPR and electoral database when it examined the UID Bill.  This constitutes commission of a series of illegalities and acts of unwarranted subordinate legislation.

It has come to light that head of UIDAI was given ID Limelight Award at the ID WORLD International Congress in Italy. This year the 10^th edition of the ID WORLD International Congress is planned in Milan, Italy during November 2-4. The key sponsors of Congress include Morpho (Safran group), a French multinational corporation specializing in ID credentials solutions incorporating biometrics application in passports, visas, ID documents, health and social benefits, elections, etc. Its subsidiary, Sagem Morpho Security Pvt. Ltd has been awarded contract for the purchase of Biometric Authentication Devices on February 2, 2011 by the UIDAI.

Earlier, on July 30, 2010, in a joint press release, it was announced that “the Mahindra Satyam and Morpho led consortium has been selected as one of the key partners to implement and deliver the Aadhaar program by UIDAI (Unique Identification Authority of India).” This means that at least two contracts have been awarded to the French conglomerate led consortium.  Is it a coincidence that Morpho (Safran group) sponsored the award to Chairman, UIDAI and the former got a contract from the latter?

Incidentally, Nilekani was given the award at the ID WORLD International Congress in 2010 held in Milan from November 16 to 18, 2010. One of the two Platinum Sponsors was Morpho (Safran group), a French high-technology company with three core businesses: Aerospace, Defense and Security.  Coincidentally, this Global Summit on Automatic Identification in 2009 had awarded Tariq Malik, Deputy Chairman of Islamabad based National Database & Registration Authority (NADRA) too for implementing UID project in Pakistan.

Nilekani was given the award “For being the force behind a transformational project ID project in India…and “to provide identification cards for each resident across the country and would be used primarily as the basis for efficient delivery of welfare services. It would also act as a tool for effective monitoring of various programs and schemes of the Government.”  Citizens Forum for Civil Liberties (CFCL) contends that there is a conflict of interest and it appears to be an act done in lieu of the contract.

It may been noted that UIDAI awarded contracts to three companies namely, Satyam Computer Services Ltd. (Mahindra Satyam), as part of a “Morpho led consortium”, L1 Identity Solutions Operating Company and Accenture Services Pvt. Ltd of USA for the “Implementation of Biometric Solution for UIDAI” on July 30, 2010.

It is alarming to note that Davinder Kumar, Deputy Director General, UIDAI will have residents/ citizens of India believe that the three transnational biometric technology companies working with foreign intelligence agencies namely:1) Mahindra Satyam Computer Services/Sagem Morpho, 2) L1 Identities Solutions and 3) Accenture Services who have been awarded contracts by UIDAI that “There are no  means to verify whether the said companies are of US origin or not” in a reply to Right to Information (RTI) application dated 21st July, 2011. This is quite a stark act of omission and commission that is likely to put residents of India under surveillance using delivery of public services as fish bait forever. The RTI reply is attached. Didn’t Nilekani know the country of origin of the award and their sponsors who were awarded contract by UIDAI prior to taking the award?

UIDAI officials like Nilekani and Davinder Kumar the “means to verify” the country of the origin of three companies in questions.  The first company Morpho’s website is

http://www.morpho.com/qui-sommes-nous/implantations-internationales/morpho-en-inde/?lang=en

It Press Release at http://www.morpho.com/evenements-et-actualites-348/presse/mahindra-satyam-and-morpho-selected-to-deliver-india-s-next-generation-unique-identification-number-program?lang=en reveal its partnership with Mahindra Satyam. Its parent company’s website is www.safran-group.com

The second company, L1 Identities Solutions is headquartered in Stamford, Connecticut, U.S website and its press releases at http://ir.l1id.com/releases.cfm?header=news reveal that the company received $24.5 Million in Purchase Orders in the Initial Phase of India’s Unique Identification Number Program for Certified Agile TP(TM) Fingerprint Slap Devices and Mobile-Eyes(TM) Iris Cameras. http://ir.l1id.com/releasedetail.cfm?ReleaseID=509971). Robert V. LaPenta, Chairman, President and CEO of L-1 Identity Solutions said, “We are encouraged by the strong demand we have seen in the first phase of this program for our state-of-the-art fingerprint and iris products. Our devices are receiving high marks from our customers and we believe a large number of L-1 live scans and iris cameras will continue to be ordered throughout the enrollment phase.” This was on September 22, 2010.

On July 19, 2011, L-1 Identity Solutions and Safran, Paris announced that in connection with the pending acquisition of L-1 by Safran, the parties have reached a final agreement on the terms of a definitive mitigation agreement with the United States government. L-1 and Safran were notified by the Committee on Foreign Investment in the United States (CFIUS) on July 19, 2011 that the investigation of the merger transaction is complete and that there are no unresolved national security concerns with respect to the transaction. With CFIUS approval for the merger, and having satisfied all other conditions required prior to closing, the parties intend to complete the merger transaction within the next five business days. Robert V. LaPenta, Chairman, President and CEO of L-1 Identity Solutions said, “The combination of L-1 and Safran Morpho with our complementary technologies, markets and promising synergies will result in the leading worldwide-wide provider of identity solutions today and into the future.”

As a consequence of Safran’s purchase of L-1 Identity Solutions, the de-duplication contracts of UIDAI’s CIDR and Home Ministry’s NPR which was given to two companies on July 30, 2010, both contracts are with one company now.

It seems to be a surveillance movement based on global ID card. Commenting on the merger of the two biometric technology companies, Mark Lerner, the author of the book “Your Body is Your ID” says, “Safran is a French company, 30% owned by the French government”. Safran has a 40 year partnership with China in the aerospace and the security sectors too.

The third company, Accenture, a US company headquartered in Dublin, Republic of Ireland. It won US Department of Homeland Security’s contract for five years to design and implement the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program based on biometric technology for checking identities of foreigners visiting USA.  The contract includes five base years plus five option years mandated by U.S. Congress for Smart Border Alliance project.  It is one of the main privatized gatekeepers of US borders.

Now will UIDAI and Home Ministry explain whether or not they blundered in giving contracts to these above mentioned companies? Feigning ignorance about their country of origin is not a pardonable act for sure.

At a lecture on November 23, 2012 UIDAI Chairperson talked about a gigantic naming ceremony underway-mankind’s biggest biometric database ever and ominously stated that if you do not have the Aadhaar card you will not get the right to rights. UID is like a financial address for the people. The question is if Aadhaar card is only an identifier of residents of India how does it accord to itself an inherent right to approve or disapprove rights of citizens to have rights? He mentioned the October 2012 report of the Report of the Justice A P Shah headed Group of Experts on Privacy but ignored the report of the Parliamentary Standing Committee and Statement of Concern on UID that Justice Shah had co-signed. When UIDAI Chairperson acknowledged that privacy is larger than Aadhaar and says that legal framework will even out the design risks, he took the audience for ride because while the legal framework for both the UID and Privacy is absent the implementation of UID and NPR is unfolding illegally and illegitimately.

It has been noted that the name Aadhaar is linked to the NGO of Nilekani that worked in the matter of Bangalore Agenda Task Force from 1999 to 2004.

It is clear that the Prime Minister is putting the cart before the horse, how does Privacy Bill make sense when privacy of citizens is already violated through UID related tracking and profiling system being implemented.

Parliament and citizens have not been informed so far about the ongoing merger of UID, NPR and electoral database when it examined the UID Bill.  This constitutes commission of a series of illegalities and acts of unwarranted subordinate legislation.

Planning Commission’s claim of Rs 1, 10, 000 crore of savings from unique identification (UID)-Aadhaar and the Parliamentary Committee’s Report on UID/Aadhaar Bill submitted to the Parliament which found the UID-Aadhaar scheme questionable on several counts including the fact that it is irrational to claim savings without disclosing the total budget of the UID and UID related projects. The budgetary allocation for UIDAI is acting like a sink for public money. All claims of benefits are suspect as long as total cost is presented to the Parliament and citizens.

In the face of such assault on Parliament’s prerogative, State’s autonomy, citizens’ rights and the emergence of a regime that is making legislatures subservient to database and data mining companies, the urgent intervention of the PSC, Parliament, States, political parties and citizens cannot be postponed anymore.

In a significant development, the Writ Petition (Civil) of Justice K S Puttaswamy, former judge of the Karnataka High Court was heard on November 30, 2012 before Hon’ble Supreme Court’s bench of Chief Justice Altamas Kabir and Justice J. Chelameswar echoing some of the concerns raised by seventeen eminent citizens like Justice V R Krishna, Justice A P Shah, Prof. Upendra Baxi and the findings of the Parliamentary Standing on Finance in the matter of the implementation of world biggest ever biometric data based identification exercise. The bench issued an order in the case of Justice Puttaswamy (retd) VERSUS Union of India saying, “Issue notice on the writ petition as also on the prayer for interim relief. Leave is given to the petitioners to add additional grounds.”

The petition refers to a letter of a member of Parliament, Rajya Sabha, Justice M. Rama Jois, addressed a letter to the Prime Minister in this regard on 19.01.2011 pointing out to the constitutional impropriety of issuing Aadhar Numbers even when the Bill aforesaid was pending before the parliament. But surprisingly, to the said letter, he received a reply dated January 29, 2011 simply stating that the Prime Minister has received his letter without replying to the points raised in his letter.

 Justice Puttaswamy is a former Judge of the Karnataka High Court since 1977 and after retirement he was Vice Chairman of Central Administrative Tribunal, Bangalore Bench, Bangalore. He was Chairman of Andhra Pradesh Administrative Tribunal, Hyderabad and also Chairman, Andhra Pradesh Backward Class Commission. The petitioner wants that the executive and legislature must function within the frame work of the Constitutional provisions so that Government “does not circumvent the legislature to avoid discussion, debate and voting in the Parliament and thereby render the legislature redundant or purposeless.”

The writ petition submitted, “the petitioner states that collecting Biometric information as a condition precedent for the issue of Aadhar number is an invasion of the right to privacy of citizens and therefore this can be done only by the law enacted by the Parliament and beyond the executive power.”

Taking note of the fact that “Aadhar number is issued under Section 3 of the (UID) Bill to a non citizen on the ground that he is residing in this Country, he becomes entitled to the fundamental rights guaranteed under Article 14 and 21 of the Constitution as fundamental rights under Article 14 and 21 are available to all persons in India and consequently also right to a remedy under Article 32 of the constitution of India”, the petition submits, “it is a matter of great security concern for the nation also. When such is the magnitude of the provisions of the Bill, still it is sought to be implemented by the exercise of executive power without any discussion, debate and the approval by both the Houses of the Parliament.”

The petition asks the Supreme Court, “what is the contours of the executive powers of the Central Government under Article 73 and whether the executive power vested in the Union can be exercised so as to adversely affect the fundamental right to privacy and in a manner so as to bye-pass the legislative power of the Parliament? And render the Bill Purposeless. “The petitioners are constrained to state that the subject matter involved in the Bill is of serious consequences to the right to privacy of the citizens of the Country and also right to secrecy of their personal matter and involves colossal expenditure to the Union.”

It asks “whether the executive power could be used in a manner so as to make the legislative power redundant or in other words, whether by the exercise of executive power, the executive can circumvent the Parliament? However, having regard to the far reaching importance of the matter which is highly controversial and involves colossal expenditure, which is sure to become a waste if and when the Parliament rejects the Bill, or for any reason the scheme becomes impracticable rendering the enormous money spent till then a National Waste.”

The petition prays Hon’ble Supreme Court for issuance of “a writ in the nature of mandamus restraining the respondents from issuing Aadhaar Numbers by way of implementing its executive order dated 28.01.2009 which tantamount to implementing the provisions of the National Identification Authority of India Bill, 2010 pending before the Parliament until and unless the said Bill is considered and passed by the parliament and becomes an Act of parliament.” On the grounds that “The scheme formulated by the Central Government in its notification dated 28.01.2009 constituting Unique Identification Authority of India [UIDAI] and authorizing it to issue aadhaar numbers which adversely affect the fundamental right to privacy flowing from Article 21 of the constitution, cannot be implemented unless it becomes a law enacted by the Parliament.”

On the ground that “When the Government has introduced the National Identification Authority of India Bill, 2010 in the Rajya Sabha for the same purpose for which the executive order dated 28.01.2009 was issued, and the same has been rejected by the Standing Committee, Finance, to which it was referred, can still implement its executive order without bringing the Bill for consideration before the Parliament for purpose of discussion, debate and passing by it and before it became an Act of parliament.”

It may be noted that three UID related petitions are pending in the High Courts in Chandigarh, Tamil Nadu and Maharashtra as well.

Given the fact that convergence of citizens’ personal sensitive information is being converged and is making right to have citizens’ rights dependent on State’s whims and fancies at the behest of ungovernable technology companies, States must un-sign the MoUs they have signed with the UIDAI whose legality is questionable to protect the rights of the citizens of their respective States. Although belated legislative assemblies, councils, panchayati raj institutions, Gram Sabhas, universities etc must examine the illegality and illegitimacy of biometric data based identifications of citizens and put a stay on the implementation of UID and NPR related projects.

Political parties, citizens groups and media houses concerned about public interest ought to consider deploying legal minds to examine the questionable nature of world’s biggest biometric database (UID-NPR initiatives) to protect the democratic rights of the present and future generations.

For Details: Gopal Krishna, Citizens Forum for Civil Liberties (CFCL), New Delhi, Mb:  9818089660, E-mail: krishna1715@gmail.com

Citizens Forum for Civil Liberties (CFCL) has been campaigning against unregulated biometric, surveillance and identification technology companies since 2010 and had appeared before the Parliamentary Standing Committee, Finance in this regard. CFCL has consistently underlined that the silence of the States which are quite vocal about threats to federal structure from Union Home Ministry‘s National Counter Terrorism Centre (NCTC) and National Intelligence Grid (NATGRID) that integrates 21 sets of databases in the matter of the creation of UID’s Centralized Identities Data Register (CIDR) disregarding the fact that Planning Commission’s CIDR and Home Ministry’s National Population Register (NPR) is inexplicable.

 

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JANUARY 25, 2013

tags: Delhi Gang Rape, Justice Verma, nirbhaya, rape

by Lawrence Liang, Kafila.org

Arvind Narrain has an op ed in today’s Hindu about the Justice Verma Committee. This is a longer version of the article

 

The public discourse post the brutal rape of Nirbhaya has witnessed a persistent degrading of the public discourse.  Having been subjected to crudely offensive remarks by members of the political establishment, right from belittling a serious movement for equality as led by  ‘painted and dented ladies’ to ostensibly sympathetic responses which belittle women who have suffered a serious violation of their bodily integrity as nothing  more than ‘zinda laash’, we finally have a document authored by a Committee set up by the state which honours Nirbhaya.

The Verma Committee Report most fundamentally alters the public discourse on crimes against women by placing these crimes within the framework of the Indian Constitution and treating these offences as nothing less than an egregious violation of the right to live with dignity of all women. What is particularly moving and inspiring about the Report is that it does so by placing the autonomy and indeed the sexual autonomy of women at the very centre of its discourse.

 

It also offers us a rethinking of what is meant by the offence of rape. In the Committee’s thinking rape is a form of sexual assault like any other crime against the human body in the IPC. According to the Committee it is  ‘the duty of the state as well as civil society to deconstruct the paradigm of shame-honour in connection with a rape victim.’

 

According to the Committee, it is very important that Indian society and the state move away from thinking of rape as a crime against honour and instead look at it as a serious violation of bodily integrity. In language which is seen perhaps for the first time in an official report, the Committee quotes a rape survivor. ‘Rape is horrible. But it is not horrible for all the reasons that have been drilled into the heads of Indian women………I reject the notion that my virtue is located in my vagina, just as I reject the notion that men’s  brains are in their genitals’.

 

The discussion on rape is located in an understanding of women as full and equal citizens  and it is intrinsic to the argument of the Report that it is only by guaranteeing women full and equal rights that sexual violence can even be tackled. It is in this context that the  Committee discusses the phenomenon of honour killing and concludes that it is the responsibility of the state to ensure that ‘choices made by men and women in respect of marriage’ will not be interfered with by institutions such as khap panchayats.

 

Where the uncompromising respect for autonomy and personhood is perhaps best exemplified is in the Committee’s discussion on marital rape. Breaching the sacred inner precinct of patriarchy which is the marital relationship, the Committee for the first time in the history of Indian law, recognizes that the married woman is an autonomous individual with full power to refuse sexual intercourse with her ‘lawfully wedded husband’. There is nothing in the nature of the relationship, which entitles the husband to sexual access to his wife at his whim and fancy. The Committee, based on an understanding of equality in the Indian Constitution comprehensively rebuts  Sir Matthew Hale’s outdated  declaration in 1736 that the ‘husband cannot be guilty of rape committed by himself upon his lawful wife’.

 

While the Committee breaches the inner wall of patriarchy, it is also  equally successful in breaching the public patriarchy of the state as a raping machine. For far too long, the Indian Armed Forces have enjoyed complete impunity for crimes of sexual violence committed against women in situations of armed conflict. The women in Chattisgarh, Kashmir as well as the North East have borne mute witness with their bodies to unspeakable acts of sexual violence. For the first time in history, the Committee has recognized that sexual violence against women committed by members of the armed forces must come within the purview of ordinary criminal law. It recommends a ‘review of AFSPA and AFSPA like legal protocols as soon as possible’.  The requirement of sanction for prosecuting these offences committed by uniformed personal has been done away with.

 

The Committee also introduces the notion of ‘command responsibility’ whereby a public servant in command, control  or supervision of the armed forces or police would be held responsible for failure to exercise control over the actions of his subordinates resulting in rape or sexual assault. Here again the Committee breaches the code of impunity of the Indian state for sexual offences committed by its personnel.

 

The Committee has shown a sense of occasion by  recognizing  that a historic  moment such as this must be transformative for all. As such, it expressly suggests that the definition of those who could be affected by sexual assault should include both men as well as homosexual and transgender persons. It thus recommends that the law expressly protect  all  persons from  rape and sexual assault.

 

The jet of anger which emerged through the brutal rape of Nirbhaya has through the work of the Committee been transmuted into an ever widening circle of empathy which includes children in juvenile facilities, trafficked women and children,  Lesbian, Gay, Bisexual and Transgender persons, domestic workers, women in situations of armed conflict as well as women in violent marital relationships. The Committee through making recommendations for all these vulnerable groups has seized the moment and articulated the patriarchal  ills of the  Indian state and society.

 

The fact that the Report is based upon a historic articulation of hurt and harm suffered by Indian women emerges most poignantly through the articulation of the offence of rape which results in a persistent vegetative state for which the punishment is rigorous imprisonment of a minimum of twenty years going up to life. This recognition of an aggravated form of sexual assault is a tribute to Aruna Shanbaug who was brutally raped and choked with a dog chain and is living since the  last thirty six years in a persistent vegetative state.

 

The Committee has performed a fine balancing act of  being sensitive to public opinion without allowing mere public sentiment to emerge as  the arbiter of policy and law. In doing so, it resists the tendency of basing its recommendations on shifting notions of right and wrong and instead derives its recommendations from constitutional values.

 

It is keeping in mind constitutional morality,  that the Committee has refused to yield to the public clamor for the death penalty for those accused of the brutal rape. It has also firmly reiterated that both chemical and surgical castration are ‘cruel and unusual’ punishments which are not in conformity with the Indian Constitution and hence to be rejected.  The growing clamour for the lowering of the age of the juvenile from eighteen to sixteen has also been rejected by the Committee citing the fact that as far as the juvenile is concerned, it is the responsibility of the state to invest in processes which can aid the reformation of the juvenile.

 

The Committee has done an incredible job of transmuting pain and anger into an inspirational roadmap for the future. It is now up to civil society to ensure that the radical recommendations of the Committee are converted into  reality.

 

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