The ghastliness of the assault on a young woman in the capital city on 16 December 2012 has unfolded the macabre reality of our society. Public Interest Foundation (PIF), an NGO engaging in advocacy for adoption of good governance practices analyzed the potential of existing legislations to fight discriminatory stereotypes reflecting the historically thriving unequal power relations between men and women. The incident, indubitably, disturbs our consciousness signalling the need to redefine the status of women in the existing laws requiring gender-neutral and gender-specific provisions. The Foundation submitted a memorandum to the Justice Verma Committee requesting its thoughtful attention toward suggestions illuminating best practices in legislations on violence against women and possible amendments to the Criminal Law (Amendment) Bill, 2012.
In this article, PIF cites the most crucial and critical suggestions to the Criminal Law Bill,2012 infused with the ideas from the foundational principles inspired by UN Handbook for Legislation on Violence against Women for a cathartic gender-sensitive approach in Indian law.
There is an urgent need for a national action plan or strategy on violence against women, which should contain a set of activities with benchmarks and indicators to ensure that coordinated approach to the implementation of the legislation acknowledges that violence against women is a form of discrimination and a violation of women’s human rights. Any custom, tradition or religious contemplation should not be allowed to rescind the legislation by justifying violence against women.
The proposed amendments in the Criminal Law Bill, 2012, especially under Section 375 broadens the definition of sexual assault and adopts a gender neutral understanding, which potentially thwarts the gender-based assumption of sexuality. Even so, with respect to the cases of sexual assault under Section 375, the perpetrators should be gender-specific even as the survivors remain gender neutral to ensure that the gender neutrality does not prove to be convenient to the patriarchal values embedded in the judicial and administrative frameworks. There exists compelling grounds for the inclusion of marital rape in Section 375 of the IPC thus repealing the exception clause appended under Section 375 as it could mean the wife to have given an irrevocable consent to sexual relationship with the husband. If marital rape is included in the proposed Bill it should be reflected in Section 376A of the Bill, which should not be restricted to the status of separation and thepunishment and should comply with the punishment suggested under Section 376 respecting clause 376(2)(e). The age of consent is required to be reduced to 16 from 18 years under Section 375 of the Bill to protect minors from criminalization of consensual sex. In this regard, the use of the term consent’ in the Bill is critical and therefore, a statutory definition of this term for clarity and elucidation is necessitated to guarantee legal harmony. In order to maintain an implicit consistency in the punitive actions proposed in the Bill, the term of punishment for crime under Section 376B to be uniform with Section 376. Significant to ascertaining enhancement in punitive actions is the replacement of term of punishments under Sections 376B, 376C, 376D where stated to be “not be less than five years” with “not be less than seven years.” The adoption of the new Section 376E recommended by the Law Commission by the Bill with the replacement of words “incites a young person” with “incites any person or child” under Sections 376(E)(2) and 376(E)(3) would certainly strengthen the expanding legal understanding of violence against women. The replacing of words “assault or criminal force to woman with intent to outrage her modesty” in Section 354 with “assault or criminal force to violate bodily integrity of woman” is to be accompanied with the adoption of amendment suggested by the Law Commission on Section 509 and further replace “to insult the modesty of a woman” in Section 509 with “to violate the bodily integrity of woman.” The incorporation of gender neutrality in the aforementioned sections could prove fatal in our culture conceptualized by a patriarchal order. Repealing of Section 377 in the backdrop of the July 2009 verdict of the Delhi High Court, which read down the section and thus decriminalizing adult consensual sex between same sex is ineluctable in the present day. Further, the passing of Protection of Children against Sexual Offences Act, 2012 by the Parliament has made the existence of Section 377 redundant. The recommendations of the Law Commission on the Criminal Procedure Code should be adopted by the Bill. Effective use of provision in the Criminal Procedure Code to demand good conduct from anti-social elements and proceeding against persons indulging in eve teasing , verbal lewd remarks or gestures to annoy or harass women could be of great significance. For this purpose a new section, analogous to Section 107 Cr.P.C could be inserted to the authorised magistrates to bind down offences on personal bond with or without sureties for a period of six months. In the face of escalating attacks on women, Criminal Procedure Code should consider allowing a victim of sexual assault to register an FIR in any police station the victim prefers to go.
There lies a strong case for death penalty as punishment in cases of grave injuries caused by sexual assaults rendering irreparable and permanent bodily damages on the victim. In respect of such offences like rape, attempt to rape causing grievous hurt or throwing acid on a woman, an accused being juvenile aged between 1 and 18 years should be tried and punished as an adult and not as a juvenile. The Juvenile Justice (Care and Protection of Children) Act and the subjective knowledge of reformation understood in the Act should be in congruity with the grievousness of the crime committed by the juvenile. This demands specifying of juvenile offences by the Juvenile Justice Act ensuring that the Act does not protect those juveniles accused of committing crimes of heinous and adult nature.
Imperative to the review of proposed amendments in the Criminal Law Bill, 2012 and the Law Commission of India report on Review of Rape Laws, 2000 has been the postulation to explicate fundamental minimum features furnishing the suggestion for adoption in the Bill. These grounding principles have been designed in sync with the thoughts of the UN handbook which states that the definition of violence against women in legislation should encompass all forms of violence- domestic violence, sexual violence including sexual assaults and sexual harassment; harmful practices like early marriage, forced marriage, honour crimes, acid attacks, dowry crimes, forced pregnancy and trying women for sorcery; feminicide or femicide; sexual slavery and trafficking; violence against women in community and conflict zones; violence against women condoned by the State including violence in police custody and those committed by security forces, and the like.
A proposed legislation on the subject is to provide for a deadline regarding the length of time that may pass between its adoption and entry into force. The legislation should provide for an overarching effect of the proposed bill on provisions contained in other areas of law, such as family and divorce law, property law, housing rules and regulations, social security law, employment law and juvenile law. Thus, not contradicting the legislation adopted, so as to ensure a consistent legal framework that promotes women’s human rights and gender equality and the elimination of violence against women.
It should define sexual assault as a violation of bodily integrity and sexual autonomy replacing existing offences of rape with a broad offence of sexual assault graded based on harm. The legislation should specifically criminalize sexual assault in a relationship by providing that sexual assault provisions apply “irrespective of the nature of the relationship” between the perpetrator and the complainant or stating that “no marriage or other relationship shall constitute a defence to a charge of sexual assault under the legislation.”
Legislation should provide that police officers should respond promptly to every request for assistance and protection in cases of violence against women including domestic violence, even when the person who reports such violence is not the complainant/survivor; and upon receiving a complaint, conduct a coordinated risk assessment of the crime scene and respond accordingly in a language understood by the complainant/survivor, including by interviewing the parties and witnesses, including children, in separate rooms to ensure there is an opportunity to speak freely; recording the complaint in detail; advising the complainant/survivor of her rights; filling out and filing an official report on the complaint; and provide protection to the reporter of violence.
Legislation should establish that responsibility for prosecuting violence against women lies with prosecution authorities and not with complainants/survivors of violence, regardless of the level or type of injury; require that complainants/survivors, at all relevant stages of the legal process, be promptly and adequately informed, in a language they understand their rights, the details of relevant legal proceedings, available services, support mechanisms and protective measures, opportunities for obtaining restitution and compensation through the legal system; require that cases of sexual assault ought to continue in the unfortunate event of demise of the victim; and require that a complaint with respect to violence against women cannot be withdrawn by the survivor or the reporter of the crime at any stage of legal proceeding. The Armed Forces (Special Powers) Act (AFSPA) should not be a shield to protect military personnel who are accused of crimes including murders and crimes against women and children. It should also explicitly prohibit mediation in all cases of violence against women, both before and during legal proceedings.
The legislation should mandate the allocation of budget for creating specialized courts guaranteeing timely and efficient handling of cases of violence against women; strengthening of specialized police units and specialized prosecutor units on violence against women; creating a general obligation of the State to provide funding for integrated support services to assist survivors of violence including financial assistance to survivors, one national women’s phone hotline for urgent assistance, access to healthcare, crisis and trauma centre; and allocating a specific budget for survivor-centred programmes and capacity-building training programmes.
The Foundation believes that a comprehensive legislation while ensuring expeditious legal proceedings and encouraging effective sanctions against non-compliance by relevant authorities should provide the groundwork for a holistic response to violence against women. Irrefutably, the Foundation also deems that the framework for legislation on the subject should serve as an instrument to provide justice, support and protection to victims and hold perpetrators accountable.
By Nripendra Misra, Director, PIF & Annapoorna Karthika, Research Associate, PIF