Committee members Leila Seth and Justice Verma exchange a word before the media release of the Report in January this year.
Photo: PTI.
Eight days after the December 16, 2012 Delhi gangrape incident,
a three-member Committee led by Justice J.S. Verma, former Chief Justice of the Supreme Court,
was set up to recommend amendments to the Criminal Law so as to
provide for quicker trial and enhanced punishment for criminals accused
of committing sexual assault against women. Justice Leila Seth, the first woman judge of the Delhi High Court and
Gopal Subramanium, former Solicitor General of India, were the other two members on the Committee.
The Committee submitted its report on January 23, 2013. It made
recommendations on laws related to rape, sexual harassment, trafficking,
child sexual abuse, medical examination of victims, police, electoral
and educational reforms. The key recommendations of the
Committee have been summarised below:
Rape: The Committee recommended that the gradation of sexual offences should be retained in the Indian Penal Code, 1860 (IPC). It held that any non-consensual
penetration of a sexual nature should be included in the definition of
rape. Rape should be
retained as a separate offence and it should not be limited to
penetration of the vagina, mouth or anus. It was of the view that rape and sexual assault are not
merely crimes of passion but an expression of power.
The IPC differentiates between rape within marriage and outside
marriage. Under the IPC sexual intercourse without consent is
prohibited. However, an exception to the offence of rape exists in
relation to sexual intercourse by a husband upon a wife without obtaining her consent.
The Committee recommended that the exception to marital rape should be
removed. Marriage should not be considered as an irrevocable consent to
sexual acts, it said. The relationship between
the victim and the accused should not be relevant with regard to an inquiry about whether the
complainant consented to the sexual activity.
Sexual assault: At the time of consultation, “assault or use of criminal
force to a woman with the intent to outrage her modesty” was punishable
under Section 354 of the IPC with 2 years imprisonment. The term
outraging the modesty of a woman was not defined in the IPC. Thus, where
penetration could not be proved, the offence was categorized as defined
under Section 354 of the IPC.
The Committee recommended that non-penetrative forms of sexual contact
should be regarded as sexual assault. The offence of sexual assault
should be defined so as to include all forms of non-consensual
non-penetrative touching of a sexual nature. The sexual nature of an
act should be determined on the basis of the circumstances. Sexual
gratification as a motive for the act should not be prerequisite for
proving the offence. The offence should be punishable with 5 years of
imprisonment, or fine, or both.
It recommended punishment of 3 to 7 years of imprisonment for use of criminal force to disrobe a woman.
Verbal sexual assault: At present, use of words or
gestures to “insult a woman’s modesty” is punishable with 1 year of
imprisonment or fine or both under Section 509 of the IPC. This section
should be repealed. The Committee suggested that use of words,
acts or gestures that create an unwelcome threat of a sexual nature
should be termed as sexual assault and be punishable for 1 year
imprisonment or fine or both.
Sexual harassment: The Committee made some imnportant recommendations on the Committee on the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Bill, 2012:
- Domestic workers should be included within the purview of the Bill.
- Under the Bill the complainant and the respondent are first
required to attempt conciliation. This is contrary to the Supreme Court
judgment in Vishakha vs. State of Rajasthan which aimed to secure a
safe workplace for women.
- The employer should pay compensation to the woman who has suffered sexual harassment.
- The Bill requires the employer to institute an internal complaints
committee to which complaints must be filed. Such an internal committee
defeats the purpose of the Bill and instead, there should be an
Employment Tribunal to receive and adjudicate all complaints.
Acid attack: The Committee opined that the offence
should not be clubbed under the provisions of grievous hurt which is
punishable with 7 years imprisonment under the IPC. It recommended that the central and
state government create a corpus to compensate victims of crimes against
women.
Offences against women in conflict areas: The
continuance of Armed Forces (Special Powers) Act (AFSPA) in conflict
areas needs to be revisited. At present, the AFSPA requires a sanction
by the central government for initiating prosecution against armed
forces personnel. The Committee has recommended that the requirement of
sanction for prosecution of armed forces personnel should be
specifically excluded when a sexual offence is alleged. Complainants of
sexual violence must be afforded witness protection. Special
commissioners should be appointed in conflict areas to monitor and
prosecute for sexual offences. Training of armed personnel should be
reoriented to emphasise strict observance of orders in this regard by
armed personnel.
Trafficking: The Committee noted that the Immoral Trafficking
Prevention Act, 1956 did not define trafficking comprehensively since it
only criminalised trafficking for the purpose of prostitution. It
recommended that the provisions of the IPC on slavery be amended to
criminalise trafficking by threat, force or inducement. It also
recommended criminalising employment of a trafficked person. The
juvenile and women protective homes should be placed under the legal
guardianship of High Courts and steps should be taken to reintegrate the
victims into society.
Child sexual abuse: The Committee has recommended that the
terms ‘harm’ and ‘health’ be defined under the Juvenile Justice Act,
2000 to include mental and physical harm and health, respectively, of
the juvenile.
Punishment for crimes against women: The Committee
rejected the proposal for chemical castration as it fails to treat the
social foundations of rape. It opined that death penalty should not be
awarded for the offence of rape as there was considerable evidence that
death penalty was not a deterrence to serious crimes. It recommended
life imprisonment for rape.
Medical examination of a rape victim: The Committee has
recommended the discontinuation of the two-finger test which is
conducted to determine the laxity of the vaginal muscles. The Supreme
Court has through various judgments held that the two-finger test must
not be conducted and that the previous sexual experience of the victim
should not be relied upon for determining the consent or quality of
consent given by the victim.
Police Reforms: The Committee recommended certain
steps to reform the police. These include establishment of State
Security Commissions to ensure that state governments do not exercise
influence on the state police. Such Commissions should be headed by the
Chief Minister or the Home Minister of the state. The Commission would
lay down broad policy guidelines so that the Police acts according to
the law. A Police Establishment Board should be established to decide
all transfers, postings and promotions of officers. Director General of
Police and Inspector General of Police should have a minimum tenure of 2
years.
Electoral Reforms: The Committee recommended the amendment of
the Representation of People Act, 1951. Currently, the Act provides for
disqualification of candidates for crimes related to terrorism,
untouchability, secularism, fairness of elections, sati and dowry. The
Committee was of the opinion that filing of charge sheet and cognizance
by the Court was sufficient for disqualification of a candidate under
the Act. It further recommended that candidates should be disqualified
for committing sexual offences.
Education Reforms: The Committee has recommended that
children’s experiences should not be gendered. It has recommended that children should be imparted education about their sexuality. It emphasised the importance of adult literacy
programs for gender empowerment.
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