#RIP- Justice JS Verma, who headed the anti-rape law panel, no more


Edited by Amit Chaturvedi | Updated: April 22, 2013 22:53 IST

Justice JS Verma, who headed the anti-rape law panel, dies

New DelhiFormer Chief Justice of India Justice Jagdish Sharan Verma, who headed a three-member panel to examine laws on crimes against women, died today due to multiple organ failure. He was 80.The new anti-rape law passed by Parliament in March incorporates some of the recommendations made by the Justice Verma Commission. The panel of Justice Verma, Justice Leila Seth and Gopal Subramaniam was set up in the aftermath of the December 16 gang-rape of a medical student in Delhi last year.

The Verma Commission put together its report in just 29 days. Justice Verma had urged the government to match his team’s commitment by implementing the changes urgently.

He was honoured at NDTV‘s Indian of the Year Awards on April 15 for fighting for justice for the Indian woman.

 

#India – Uttar Pradesh engineer is first to be booked under new stalking law #Vaw #Justice


20-year-old would harass Bhayandar woman, who used to be his neighbour, with lewd late-night calls

 

Ram Parmar, Mumbai Mirror March 16,2013

 

 

A 20-year-old engineering student from Uttar Pradesh has been arrested by the Navghar (Bhayander East) police for stalking a married woman who used to live next door to him in Varanasi. Vishal Verma is the first suspect to be charged under the new Section 354-D (stalking) of the Indian Penal Code, which is now a non-bailable offence.

Verma, a first-year engineering student at IIMT Engineering College, Meerut, and a resident of Varanasi, first met the woman when she was unmarried. He became infatuated with her and his obsession continued even after she got married and moved from Varanasi to Bhayandar. Inspector Dinkar Pingle of Navghar police station said Verma would telephone her late at night and harass her, asking her for “kisses” over the phone.

On February 21, Verma again called the woman to profess his love for her and said he would come down to Bhayander to meet her. He asked her for a kiss, at which the woman slammed the phone down. Verma continued to telephone her, but she ignored his calls. “Finally, the woman registered a complaint with us on March 3 and we started to investigate the matter,” said Inspector Pingle. “We sent a team to Benares, which arrested Verma and charged him under the new Section 354 (D) of the IPC,” added Pingle. Since it is a now a non-bailable offence, Verma has been remanded in police custody till Monday, when he will be produced before the Thane Sessions Court.

 

 

Join People’s Watch Over Parliament Demanding Implementation of Verma Report @21Feb


1st Day of the Budget Session

 

21 February, Thursday, 12 Noon,

 

Jantar Mantar,

 

 Join PEOPLE’S WATCH OVER PARLIAMENT  

  • NO to Eyewash Ordinance !
  • For An Effective Law Against Sexual Violence Based on Justice Verma Recommendations !!
  • Budgetary Allocations for Rape Crisis Centres, Safe Houses for Women, More judges and courts, Forensic Examination facilities, compensations for survivors of rape and acid attacks, etc 
Speakers and Cultural Performances:
Shabana Azmi, Vrinda Grover, Madhu Mehra, Nilanjana Roy, Gautam Bhan, Rebecca John, Binalakshmi Nepram, Karuna Nundy, Kamal Chenoy, Maitreyee Pushpa, Anand Pradhan, Bimol Akoijam, and many other scholars, activists of the women’s and students’ movement and the JNUSU.
Street play called ‘Bekhauf Azaadi’ by Hirawal from Patna;
Performance by Maya Krishna Rao

Play by Asmita Theatre Group
Manzil Mystic Band
Mandala Circle (Lokesh Jain)
Artists Creative Theatre from Manipur
P
oster exhibitions on the theme of women’s and people’s freedom 
 

Freedom Without Fear- Bekhauf Azadi,

Campaign Against Sexual Violence and Gender Discrimination

Contact:  9560756628, 9868383692 ,  9868033425 ,  9213974505

 

 

Why the Govt’s Ordinance is an Eyewash and a Mockery of the Justice Verma Recommendations


Bekhauf Azaadi Campaign

The UPA Govt, in a Cabinet meeting held on 1 February, has introduced an ordinance that it claims will address the most urgent concerns on sexual violence. In fact, the Government has been completely reluctant to acknowledge and implement the Justice Verma Committee recommendations: the PM refused to accept it from Justuce Verma, the Ministry of Home Affairs removed it from their website, the Govt never adopted any transparent process of discussion to decide the way forward on implementing the recommendations, rather they said Justice Verma ‘exceeded his brief’. Now, they claim that their ordinance has ‘implemented’ the Justice Verma recommendations. Is this true?

The fact is that the Government’s ordinance is a mockery of the letter and spirit of the Justice Verma recommendations.

Why? Let us take a closer look.

The Justice Verma report radically redefined the way in which sexual violence is understood, because it firmly called for safeguarding women’s autonomy – including her sexual autonomy. This means that sexual violence should be understood as any sexual contact that is forced on a woman unless she has explicitly said or indicated ‘Yes’ to it. It is irrelevant whether she is married or not, or whether the perpetrator is a policeman, judge, magistrate, public servant, politician, or army officer: the accused/perpetrator cannot enjoy impunity in any case! The ordinance completely mocks this basic principle.

 

The ordinance is nothing but the Govt’s old discredited Criminal Law Amendment Bill 2012 with some extra window dressing. What’s WRONG with this ordinance?

 

  • Rejecting Justice Verma’s recommendations to ensure gender-specificity (male) of the perpetrator of rape and gender-neutrality for victims, the ordinance makes rape a ‘gender-neutral’ crime. This means that a man can accuse a woman of rape!!
  • The ordinance criminalises consensual sexual activity between 16-18 years; such sexual activity, even by consent, will automatically be seen as rape. This will give a handle to the moral-policing brigades and communities who harass inter-caste and inter-religious friendships and relationships, by branding young boys as ‘rapists.’ See what is happening in Mangalore now: Bajrang Dal and Durga Vahini brigades have been entering ice-cream parlours, rounding up teenage couples and handing them over to the police; the Chhattisgarh police in Bhilai is doing the same. Such forces will get a handle to use the rape law against boyfriends.
  • The ordinance refuses to include marital rape in the rape law – and it continues to give a lesser punishment for rape of a separated wife by a husband. The Govt’s press release about the ordinance shamelessly says that “Verma criminalises marital non-consensual sexual intercourse” but the Govt will not do so! So, according to the Govt, not every ‘non-consensual’ sexual act is rape; a husband is allowed to force sex on his wife! Even if the wife is separated from her husband, the law will be ‘understanding’ and ‘lenient’ towards him if he rapes her, since she was ‘once his wife’! This means that the ordinance continues to see the wife as the husband’s sexual property, rather than as a person is her own right, with the same right to say YES and NO to sex as any unmarried woman! We know domestic violence is common in marriage: can’t the husband who batters his wife, also rape his wife?! Our govt is saying he will have the right to rape his wife!
  • The ordinance rejects Justice Verma’s recommendation of the principle of ‘command responsibility’ in case of custodial rape by police or army: i.e the principle that a superior officer will be held responsible if a junior officer commits rape or sexual assault. This principle is crucial if one considers the manifold cases of custodial rape like that of Soni Sori – where a senior officer Ankit Garg ordered his juniors to sexually torture her; or a case like Kunan Poshpora, where an entire village of women in Kashmir was gang-raped by the Army – something that could not have taken place without the awareness and blessings, even orders, of higher officers!
  • The ordinance fails to include sexual violence in the context of caste/communal massacres in the category of ‘aggravated sexual assault’ – as recommended by Justice Verma report (p 220).
  •  The ordinance rejects the Justice Verma’s recommendation that no sanction be required to prosecute judges/magistrates/public servants who are accused of sexual violence; and similarly that the AFSPA be amended to do away with the requirement for sanction to prosecute an army officer accused of sexual violence. Justice Verma’s argument was clear: no army officer nor any judge or public servant can claim to have raped in the course of his duty! The ordinance, by rejecting Justice Verma’s recommendations, ensures impunity for powerful rapists.Similarly the ordinance makes no move to implement the electoral reforms called for by Justice Verma, specifically against candidates and elected representatives accused of serious sexual offences.
  • The ordinance introduces death penalty in the rarest of the rare cases of rape. This is a deliberate red herring. For one thing, death sentence is already a possibility in cases where rape is compounded with murder. By introducing it in the rape law, even Congress leader and advocate Abhishek Manu Singhvi, speaking on NDTV, expressed the ‘personal opinion’ that this would further lower the conviction rate because it would deter the court from sentencing! Currently, let us remember that the Courts are reluctant even to give the minimum 7 year sentence for rape, and keep finding excuses to reduce it to as low as 3! Will the same Courts not become even more reluctant to convict, if conviction will mean death? 
  • The Justice Verma report recommended imprisonment for 5 years for a policeman who failed to follow the law (i.e registering FIRs or proper investigation); the ordinance admits for a jail term of just one year for this offence.
  • The ordinance completely ignores the recommendations of changes in medico-legal protocol, including prohibition of the two-finger test and ensuring rape crisis centres and proper medical care and examination of rape survivors; as well as police reform, public transport and other measures. 

 

The ordnance makes of mockery of all those recommendations of the Justice Verma committee that actually reflected the idea of protecting women’s autonomy: be it a 16-year old girl who has sexual contact with her boyfriend to a married woman who says no to her husband, the ordnance just fails to accept a woman’s own autonomy and consent as crucial to deciding if rape occurred or not! The ordnance continues to make excuses for certain powerful perpetrators of rape: it continues to ensure that certain institutions of power (marriage/police/army/judges/magistrates/public servants/politicians) remain protected from prosecution for rape.

We refuse to accept this eyewash! We demand full implementation of the Justice Verma Committee Report!

We can defeat the Govt’s ploy to dilute and subvert the JVC recommendations only by being on the streets and continuing to fight! 

Bekhauf Azaadi has called for a protest against the ordinance and demanding implementation of JVC on 4 Feb at 2 pm at Jantar Mantar. Please do join. There will be several other protest and campaign actions in the days to come, please do join each of them, and make sure the Govt does not get away with betraying our movement and the JVC Report.

 

#India-The Official Emergency Continues – The Ordinance on Sexual Assault #Vaw


FEBRUARY 3, 2013

Guest post by PRATIKSHA BAXI,

The reform of rape law, which was not a priority for more than two decades, seems more like a 20-20 match now. The spectacle of judicial reform has all the elements of cinematic imagination built into it—violence, voyeurism, repression, tears, scandal, redemption and betrayal. We are all consumers and participants of this judicial spectacle. We veer between manic hope and dark despair as we are left conjecturing how this theatre of judicial reform will enact equality and dignity for survivors of sexual assault. The latest twist in the tale is the introduction of an ordinance, following the Justice Verma Committee (JVC) report.

We are told that the government decided to formulate an ordinance to address sexual violence as an emergency. Strangely enough the text of the ordinance has been kept a secret, other than the press release ostensibly released by the government, hence we can only comment on the series of statements made to the media. It is claimed that the JVC report informed this ordinance, which collates the “uncontroversial” elements in the JVC and the Criminal Law Amendment Bill2012. The ordinance will become the law perhaps on Monday if the President signs it. Until the parliament meets, the ordinance will define sexual assault.

The government accepted the JVC’s demand that their recommendations should be incorporated immediately as an ordinance. In fact Justice Verma on Times Now said that the non-controversial aspects of their recommendations should be immediately passed as an ordinance. To quote Justice Verma, “but there are many things which we have said which have been talked of for sometime and there are no two opinions. Now where is the difficulty in promulgating an ordinance to implement them straight away because that is not something which need to await a debate in the Parliament”.

The self-construction of the JVC as a manifesto of the peoples’ movements against sexual violence, including the women’s movement and the positioning of the members of the JVC as “heroic” for having finished the report in 29 days should have signalled to us that an ordinance would be scripted as the outcome of this committee. So why are we surprised that there is an ordinance? And why critique the ordinance? Is it not reasonable that some of the elements of a progressive legislation should be enacted now such as the provisions on acid attack, stalking, voyeurism, and trafficking until a more comprehensive law can be crafted in the parliament? Why should an acid survivor not benefit from this new law—presuming that the state will spend enough money publicising the ordinance to every thana and hospital for three weeks? 

One could argue that the opposition is not to recognising that sexual violence is an emergency that women experience everyday rather the important question is what is recognised as an emergency, and when.

  1. In the ordinance, the retention of the marital rape exemption is not seen as an official declaration of permanent sexual emergency for married women.
  2. The rape of women by security agencies, a state of permanent sexual emergency, continues to need sanction for prosecution from the government.
  3. Those politicians charged with rape will continue to wield power to uphold states of sexual emergency for women.
  4. Those who are in positions of power and authority to stop mass sexual violence suspend law to allow unimaginable and targetted sexual and reproductive violence are not seen as criminally authoring and authorising states of sexual emergencies.
  5. The ordinance does not recognise the states of emergencies declared against young people who choose to marry against social norms of caste, community and religion.
  6. The ordinance does not recognise that each medical examination of a rape survivor is experienced as a re-rape; and that this is an emergency.
  7. The routinized violence on dalit women, such as stripping and parading especially of those who are punished for transgressing caste hierarchies is not seen as a state of emergency.

The ordinance ascribes blame to women for creating states of sexual emergencies when it proposes a gender-neutral sexual assault law implying that women, like men, sexually assault adult persons, including men in everyday contexts! It appears that the ordinance does not create an exception to make manifest that women do not rape men. Rather dishonestly the ordinance blames women for the sins of men—by positioning them as perpetrators of sexual assault of men in everyday contexts. This creates the possibility of further criminalising women’s lives. There is proof of such criminalisation under existing laws, which are gender specific viz, perpetrators.

According to the Delhi government statistics on the profile of female prisoners in the Tihar Jailthere is increase … in rape cases by 2.47%

During 2011, as per NCRB statistics 766 women were arrested under s. 376 (rape) IPC, 1698 women arrested on the grounds of molestation (s. 354 IPC) and 193 women on grounds of sexual harassment (under s. 509 IPC). In 2011, 43 women inmates died, amongst whom eight women committed suicide in jail. Does the government have any explanation for why the police arrested more than 700 women under s. 376 IPC?

When women’s groups oppose gender neutrality viz., including women as perpetrators, one predominant concern has been the manner in which the police misuse the law to criminalise women who transgress patriarchal norms. The JVC recognised this concern in amending theCriminal Law Amendment Bill, 2012.

However, the cabinet seems to have refused to take into account the growing statistics of arrests of women under s. 376 IPC. Nor do they seem to think that men will misuse this provision against women: because in legal discourse only women seem to misuse patriarchal laws against men!

It is evident that ordinance does not revise male laws from the point of view of survivors of sexual assault. Take the example of marital rape. For whom is marital rape controversial? Surely it is not controversial for women who experience sexual violence in marriage. But the men who draft laws smell the fear of those men who cannot be bothered whether their wives want to have sex with them. Surely husbands must be given legal impunity if they sexually assault their wives, argues Abhishek Manu Singhvi, since wives will levy false cases against their husbands, and courts will be flooded with wives accusing husbands of rape. In other words, women who are married are treated as if they are pathological liars, and by implication are positioned as a “criminal type” intent on breaking up marriages on false accusations ranging from rape, domestic violence and dowry related harassment.

This argument is obviously ideological rather than sociological. It cannot be argued by anyone that women are less invested in marriage than men, given that patriarchy ensures that status and respectability of a woman in society derives from the fact of marriage. Women nurture their families, far more than men, be it their affinal or natal families. They look after the young and the old. They are dependent on their families economically, socially and politically. Women are told constantly to “adjust” to violent husbands perhaps since such men cannot be courageous to risk true love by surrendering their violent power.

Women have too much to lose if they levy false accusations of sexual assault against their husbands. Even mothers who file charges against husbands who rape their daughter are hounded in our courts, police stations and families for being bad wives, breaking up the family and threatening social order.

Further, there is no social or governmental support for women who would like to reject marriage. Single women, who are divorced, never married, or do not want to be married to men, are targeted by everyone in manifold ways. The mildest form of discrimination single women face is pity, or derision at not having their own family. The assumption that single women are “available” for male sexual experimentation, the lack of safety and the heightened vulnerability without the “protection” of a man, are all elements of enforced heterosexuality.

The government is petrified that the very suggestion that wives are autonomous will unravel the phallocentric foundations of marriage—based as it is on violence or its threat. Wanting to cling on to the monopoly to rape their wives, these men who make our laws betray a strong attachment to colonial law. This is not surprising since women’s bodies in enforced heterosexuality are colonised by the desires of husbands who enjoy rape. If those who script laws had been accepting of different models of masculinities, and understanding of pluralities of sexual experiences crafted by the experience of the joy of autonomy, they would not have expressed such panicked fear. They would have also deleted s. 377 IPC by way of an ordinance but then heterosexist men despise queer sexuality the most.

The cabinet does not need to conduct a national survey to realise that rape is a preferred mode of violence in marriage. They know that most often heterosexist men do not bother to be solicitous of the desires of their wives or pleasure them. Such heterosexist men do not wish to acknowledge that there are alternate ways of scripting sexual relationships, which are alive with autonomy, laughter and sexual creativity—precisely because of mutual respect and admiration. If the men in positions of power had experienced such relationships, they would not feel threatened by legislating against the sexual colonisation of women’s bodies by their husbands. The law distorts what marriage should mean for both men and women–freedom from violence, expression of love, sexual companionship, and a journey in profound friendship. Love obviously threatens social, legal and political orders far more radically than violent ways of extinguishing a woman’s life.

The ordinance declares the continuance of those sexual emergencies in everyday and extraordinary context, which are central to patriarchal power. The spectacle of judicial reform is enacted to detract attention from such permanent states of emergency. Perhaps the Cabinet should clarify what it means by emergency in the first place, since it seems the ordinance, in its current form, embraces the idea of domesticating and even celebrating some forms of permanent sexual emergencies, over others. Nor does it take legislative labour to do away with the medicalization of consent via the two-finger test or insist on registration of FIRs irrespective of jurisdiction. This could have been done by executive or judicial decree. Unfortunately, the JVC is also complicit in the making of this spectacle of judicial reform by insisting on the model of 20/20 law reform, and demanding governmental recognition of its heroic labours, without truly understanding the deep structure of sovereign power, which has a necrophilic need for permanent states of sexual emergencies. No wonder the JVC is upset and we can only hope that their suffering makes a radical difference.

Pratiksha Baxi teaches at the Centre for the study of law and governance at JNU and can be contacted at Pratiksha Baxi pratiksha.baxi@gmail.com

 

Sharmila Tagore opposes capital punishment for rape #deathpenalty #Vaw


IANS | Feb 3, 2013, 10.46 AM IST

Veteran actress Sharmila Tagore opposed capital punishment for rape saying death is neither the ultimate punishment nor a deterrent.“I don’t think death the ultimate punishment. It is not a deterrent because when the person is committing the crime, he thinks that he is not going to be caught.”

“In southern states of America where death penalty exists there is the highest crime rate there, so it is not really a deterrent. Rigorous imprisonment for entire life is a better way of punishing somebody,” said the actress at a literary meet.

Speaking at the discussion on ‘Will Capital Punishment for Rape Help or Hinder Justice?‘, Sharmila felt that the report by the Justice J.S. Verma committee which was constituted following the Delhi gang-rapeincident Dec 16 to look into rape laws was “wonderful” and had tried “to engage with the problem”.

“At least Justice Verma has touched and tried to engage with the problem, and has heard the hurt, sentiment and the rage with the youth.”

“But of course they have stepped back from passion and have covered this in this wonderful report desisting from the death penalty which is taking somebody’s life which is coming from the point of thinking that the state must establish an ethical standard of public morality because state cannot take somebody’s life,” she said.

However, Sharmila also felt the report was silent on issues like the three-month trial period demanded by women rights groups.

Praising the amendments that have been brought about in laws pertaining to women, she said: “They have taken away this cuddly, protectionist language and they are no longer calling it eve teasing or outrage to modesty or any of those awfully inadequate words. So the language is changing and they are calling rape as a rape.”

But the real focus, according to her, should be on changing the mindset of people that sees women as “repositories of honour”.

Touching on the social aspect, she said that there is a “business of shame and honour” which people associate with it.

“Rape happens within the family-it is your father, it is your brother, your uncle, neighbours and relatives. So how many people are you going to kill so it is just not practical.

“And then this shame and honour business which we all have got into and yes we are part of that patriarchy. Police is also part of that patriarchy,” said Tagore.

 

#India- A moment of triumph for women #justiceverma #Vaw #womenrights


KALPANA KANNABIRAN,The Hindu

The comprehensive reforms suggested by Justice Verma and his colleagues will protect the right to dignity, autonomy and freedom of victims of sexual assault and rape

Starting with Tarabai Shinde’s spirited defence of the honour of her sister countrywomen in 1882, women’s movements in India have been marked by persistent and protracted struggles. But despite this rich and varied history, we have in recent weeks found ourselves shocked at the decimation of decades of struggle.

A TRANSFORMATION

At a time when despair and anger at the futility of hundreds of thousands of women’s lifetimes spent in imagining a world that is safe drive us yet again to the streets; at a time when our daughters get assaulted in the most brutal ways and our sons learn that unimaginable brutality is the only way of becoming men; at a time when we wonder if all that intellectual and political work of crafting frameworks to understand women’s subjugation and loss of liberty through sexual terrorism has remained imprisoned within the covers of books in “women’s studies” libraries; at a time like this, what does it mean to suddenly find that all is not lost and to discover on a winter afternoon that our words and work have cascaded out of our small radical spaces and transformed constitutional common sense?

The Report of the Committee on Amendments to Criminal Law headed by Justice J.S. Verma is our moment of triumph — the triumph of women’s movements in this country. As with all triumphs, there are always some unrealised possibilities, but these do not detract from the fact of the victory.

Rather than confining itself to criminal law relating to rape and sexual assault, the committee has comprehensively set out the constitutional framework within which sexual assault must be located. Perhaps more importantly, it also draws out the political framework within which non-discrimination based on sex must be based and focuses on due diligence by the state in order to achieve this as part of its constitutional obligation, with the Preamble interpreted as inherently speaking to justice for women in every clause.

If capabilities are crucial in order that people realise their full potential, this will be an unattainable goal for women till such time as the state is held accountable for demonstrating a commitment to this goal. Performance audits of all institutions of governance and law and order are seen as an urgent need in this direction.

The focus of the entire exercise is on protecting the right to dignity, autonomy and freedom of victims of sexual assault and rape — with comprehensive reforms suggested in electoral laws, policing, criminal laws and the Armed Forces (Special Powers) Act, 1958, and the provision of safe spaces for women and children.

Arguing that “cultural prejudices must yield to constitutional principles of equality, empathy and respect” (p.55), the committee, in a reiteration of the Naaz Foundation judgment, brings sexual orientation firmly within the meaning of “sex” in Article 15, and underscores the right to liberty, dignity and fundamental rights of all persons irrespective of sex or sexual orientation — and the right of all persons, not just women, against sexual assault.

Reviewing leading cases and echoing the critique of Indian women’s groups and feminist legal scholars — whether in the case of Mathura or even the use of the shame-honour paradigm that has trapped victim-survivors in rape trials and in khap panchayats, the committee observes: “…women have been looped into a vicious cycle of shame and honour as a consequence of which they have been attended with an inherent disability to report crimes of sexual offences against them.”

In terms of the definition of rape, the committee recommends retaining a redefined offence of “rape” within a larger section on “sexual assault” in order to retain the focus on women’s right to integrity, agency and bodily integrity. Rape is redefined as including all forms of non-consensual penetration of sexual nature (p.111). The offence of sexual assault would include all forms of non-consensual, non-penetrative touching of sexual nature. Tracing the history of the marital rape exception in the common law of coverture in England and Wales in the 1700s, the committee unequivocally recommends the removal of the marital rape exception as vital to the recognition of women’s right to autonomy and physical integrity irrespective of marriage or other intimate relationship. Marriage, by this argument, cannot be a valid defence, it is not relevant to the matter of consent and it cannot be a mitigating factor in sentencing in cases of rape. On the other hand, the committee recommended that the age of consent in consensual sex be kept at 16, and other legislation be suitably amended in this regard.

VOICES FROM CONFLICT ZONES

Rights advocates in Kashmir, the States of the North-East, Chhattisgarh, Gujarat and other areas that have witnessed protracted conflict and communal violence have for decades been demanding that sexual violence by the armed forces, police and paramilitary as well as by collective assault by private actors be brought within the meaning of aggravated sexual assault. This has been taken on board with the committee recommending that such forms of sexual assault deserve to be treated as aggravated sexual assault in law (p. 220). Specifically, the committee recommends an amendment in Section 6 of the AFSPA, 1958, removing the requirement of prior sanction where the person has been accused of sexual assault.

Clearly a sensitive and committed police force is indispensable to the interests of justice. But how should this come about? There have been commissions that have recommended reforms, cases that have been fought and won, but impunity reigns supreme. If all the other recommendations of the Committee are carried through, will the government give even a nominal commitment that the chapter on police reforms will be read, leave alone acted on?

THE DELHI CASE

The recent gang rape and death of a young student in Delhi has raised the discussion on the question of sentencing and punishment yet again. The first set of questions had to do with the nature and quantum of punishment. Treading this issue with care, the committee enhances the minimum sentence from seven years to 10 years, with imprisonment for life as the maximum. On the death penalty, the committee has adopted the abolitionist position, in keeping with international standards of human rights, and rejected castration as an option. The second question had to do with the reduction of age in respect of juveniles. Despite the involvement of a juvenile in this incident, women’s groups and child rights groups were united in their view that the age must not be lowered, that the solution did not lie in locking them up young. Given the low rates of recidivism, the committee does not recommend the lowering of the age, recommending instead, comprehensive institutional reform in children’s institutions.

The report contains comprehensive recommendations on amendments in existing criminal law, which cannot be detailed here except in spirit. The significance of the report lies, not so much in its immediate translation into law or its transformation of governance (although these are the most desirable and urgent), but in its pedagogic potential — as providing a new basis for the teaching and learning of the Constitution and criminal law and the centrality of gender to legal pedagogy.

(Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad. Email:kalpana.kannabiran@gmail.com)

 

#India- Alchemizing anger to hope #justiceverma #delhigangrape #Vaw #justice #Law #AFSPA


JANUARY 25, 2013
by , 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.

 

 

#India- #Delhigangrape case: 10 main points from #JusticeVerma report #Vaw


RAPE

23 Jan, 2013

Text: PTI

NEW DELHI: The Justice Verma Committee on Wednesday recommended enhancing punishment of upto 20 years imprisonment for rape and murder and life for gang rape but refrained from suggesting death penalty.

The three-member Committee headed by former Chief Justice J S Verma submitted its 630-page report to the government suggesting amendment of criminal laws to provide for higher punishment to rapists, including those belonging to police and public servants.

New offences have been created and stiffer punishment has been suggested those committing it like leaving the victim in a vegetative state.

Created new offences

The new offences include disrobing a woman, voyeurism, stalking and trafficking. The present law provides for punishment for rapists of imprisonment ranging from seven years to life.

The panel, which was constituted in the wake national outrage over the December 16 gangrape of a 23-year-old girl in Delhi in which one of the accused six is said to be a juvenile, however, is of the opinion that the age of the juvenile under the Juvenile Justice Act need not be lowered from the present 18.

There has been strong demand that the age of a juvenile should be brought down to 16 in view of the fact that the minor accused in the Delhi gangrape allegedly behaved in the most brutal way.

 

No death penalty for rapist

Releasing the report, Justice Verma told a news conference that the Committee has not suggested death penalty for rapist because there was overwhelming suggestions from the women organisations against it, a point that was received with thunderous applause from activists at the media interaction.

The Committee did not recommend death penalty for rape because it was a “regressive step” and it “may not have a deterrent effect”.

“We have not recommended death penalty as we had overwhelming suggestions against it. The women groups unanimously were against death penalty and that is why we thought that is a strong reason to respect that view particularly in view of the modern trend also,” Justice Verma said.

Replacement of Section 375 defining rape

Among the amendments proposed is a change in Section 100 of the IPC dealing with right of private defence which extends to causing death. Taking note of the brutality committed in the Delhi gang rape incident, the Committee suggested replacement of Section 375 defining rape by defining specific unnatural acts.

Intentional touching will constitute the offence of sexual assault for which punishment will be a maximum of five years rigorous imprisonment or fine or both.

Use of words, gestures which create an unwelcome threat of sexual nature or advance would invite a maximum punishment of one year imprisonment or fine or both.

Failure of many public functionaries

Justice Verma came down heavily on Union Home Secretary R K Singh for praising Delhi Police Commissioner Neeraj Kumar in the wake of the gang rape incident instead of coming out with an apology.

The Committee said the Delhi gang rape incident has disclosed the failure of many public functionaries responsible for traffic regulation, maintenance of law and order and more importantly, their low and skewed priority of dealing with complaints of sexual assault.

 

Clear jurisdiction of the police over crime scene area

Disputes relating to the jurisdiction of the police over the area of the crime are often a cause of delay in initiating the process of taking cognisance of the crime and providing medical aid to the victim.

The panel said the peculiarity of the Government of National Capital Territory of Delhi not having any control over the police force, which control vests only in the Ministry of Home Affairs is the reason given publicly by the Delhi Chief Minister for the absence of responsibility of her government.

Apathy of civil society

“This ambiguity must be removed forthwith so that there is no divided responsibility in Delhi in respect of maintenance of law and order. Such a step is also essential to maintain accountability,” it said.

The Committee also took note of the apathy of civil society and mentioned about the inaction of passers-by and bystanders, who failed in their citizenship duty of rendering help to the Delhi gang rape victim and her companion who were lying badly injured and disrobed on the roadside for a considerable amount of time.

 

Change in behaviour of the citizenry

“Misbehaviour of the police towards any samaritan is often the cause for such apathy. Bust this must not deter citizens from doing their duty. A change in the behaviour of the citizenry will also improve the conduct of the police. This effort must be promoted,” it said.

The Panel said the brutalities of the armed forces faced by residents in the border areas have led to a deep disenchantment and the lack of mainstreaming of such persons into civil society.

“Serious allegations of persistent sexual assault on the women in such areas and conflict areas are causing more alienation,” it said.

Appropriate machinery for supervision of juvenile homes

Committee member Gopal Subramanium said the Juvenile Justice Act has been a total failure and condition of the juvenile homes were pathetic.

“When you read our report you will find we have extracted from the reports of the National Commission for Protection of Children and you will be shocked to see the unimaginable things juveniles have to do there…,” he said.

The panel suggested that the Chief Justice of the High Court of every state should device appropriate machinery for administration and supervision of these juvenile homes in consultation with experts in the field.

 

Medical examination of rape victims by global experts

The Committee also said all marriages in the country irrespective of the personal laws under which such marriages are solemnised should mandatorily be registered in the presence of a magistrate and the magistrate will ensure that the marriage has been solemnised without any demand for dowry having been made and that the marriage has taken place with the full and free consent of both partners.

The panel suggested medical examination of victims of sexual assault which were prepared on the basis of the best practices advised by global experts in the field of gynaecology and psychology.

 

 

#India- Failure of governance root cause of crimes against women: #Vermacommittee #Vaw


NEW DELHI, January 23, 2013

PTI

Justice J.S. Verma committee, set up to recommend measures to improve laws dealing with sexual offences, has received around 80,000 suggestions and wrapped up its work within 29 days.

He said the failure of governance was the root cause of crimes against women. He also said it was “equally shocking” that there was total apathy of everyone who had a duty to perform.

“We have submitted the report in 29 days. When I offered to do the work within 30 days, I did not realise the magnitude of the work,” Justice Verma told a press conference after submitting his voluminous report to the Home Ministry.

Justice Verma, the head of the three-member panel, was approached by the Central government for the task on December 23. The other members of the panel are former Himachal Pradesh Chief Justice Leila Seth and former Solicitor General Gopal Subramaniam.

Highlights of Verma Committee report

Imminnent need to review AFSPA in conflict areas

Sexual offences by armed forces and uniformed men in conflict areas should be brought under ordinary criminal law

Recommends appointment of Special Commissioners with adequate powers to redress complaints of sexual violence against women in conflict areas

Ambiguity over the control of Delhi Police should be cleared

Delhi gang rape case shows the failures of traffic regulations, maintenance of law and order and dealing of sexual assault cases

Every district magistrate should prepare census of missing children

Police action on peaceful Delhi protesters scarred Indian democracy

‘All suggestions considered’

He said the report may be known after him but it is the outcome of suggestions from people within India and outside the country.

“We received 80,000 suggestions,” he said adding all of them were read and considered before finalising the report.

On how he decided on a time frame for finalising the report, Justice Verma said when a senior Cabinet Minister approached him on behalf of Prime Minister Manmohan Singh, he asked him when is the next session of Parliament.

“The Minister told me that the (Budget) session will start on February 21. There were two months. So I decided lets do it in 30 days. If we are able to do it in half the time available, then the government with its might and resources should also act fast,” he said.

He complimented the youth for the mature response.

“Youth has taught us what we, the older generation, were not aware of. I was struck by the peaceful manner in which the protests were carried out…the youth rose to the occasion,” he said.

‘Shocked to see Home Secretary praising Commissioner’

Justice Verma castigated Home Secretary R. K. Singh for his praise of Delhi Police Commissioner Neeraj Kumar in the aftermath of the Delhi gang rape incident, saying he was shocked to hear this when an apology was expected.

“The Commissioner of Police was given a pat on his back by no less than a person holding the post of Home Secretary. I was shocked to see that,” Justice Verma said.

He said the least he would have done was to seek an apology for the failure of the duty to protect citizens and “instead of that (what did we see)“.

Mr. Singh had praised Delhi Police during a press interaction days after the December 16 incident when the force arrested six men allegedly involved in the crime.

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