Dr. Bikkar Singh Lalli
On 24 December 2012, faced with escalating public protests in the wake of the Delhi bus gang-rape, Home Minister Sushil Kumar Shinde announced the formation of a three-member committee headed by former Chief Justice of India JS Verma to “suggest ways for improving safety and security of women”, including the adoption of “stricter rape laws.” With an amazing diligence, the panel of three judges completed the report in just 29 days.
Releasing an extremely comprehensive 631 page committee’s report on January 23, 2013, Justice Verma said: “I am indebted to the youth. But for them, the issue would not have come up. They have shown the way… how good governance can be achieved in a mature manner. I was given February 21 for submitting the report. So I told the government representative that instead of two months, the report would be ready in one month, and now that it is ready, I hope the government, with all its might and resources, is able to react positively on the recommendations. We pay our tribute to the departed soul of Nirbhaya which has occasioned this exercise”.
Justice Verma pin-pointed out an urgent need for sensitizing the society. “We have all the laws; what is needed is sensitivity. It is equally shocking that a large number of people passed by where the girl and her companion lay completely disrobed and injured and no one offered help. It was total apathy….” said Justice Verma. He thanked those from the international community, including people from Oxford and Harvard universities and Australia and Canada, who volunteered their observations and suggestions. “In India, we consulted experts, social activists and invited representation from those associated with the topic. The committee also got 80,000 responses from the general public, which surprised us. It is, however, sad that this tragic incident had to occur for us to wake up to the issue of gender protection.” The committee, which also included Justice Leila Seth and Justice Gopal Subramanium as members and was assisted by many young enthusiastic lawyers, has ruled out lowering the juvenile age from 18 to 16 but has recognized hitherto ignored offences like “intentional touching”, stalking, voyeurism and marital rape, which are quite common and often go unreported
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. 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”, the committee 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.
Various Rights Advocates 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. The committee has recommended that such forms of sexual assault deserve to be treated as aggravated sexual assault in law. 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. However, there is a feeling that reviewing the Armed Forces (Special Powers) Act, 1958 can have a demoralizing effect on jawans fighting terrorists in places where few dare to tread. The safeguards therein for prior sanction for prosecution are to curb motivated complaints by terrorist elements to demoralize the police force.
The committee recommends that the minimum sentence be raised 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 panel has kept a balanced focus on crime’s prevention and punishment. While rightly rejecting demands for death penalty for rape, it calls for much harsher prison terms for several categories of offenses, which include stalking, disrobing of women, acid attacks and trafficking. The committee has also recommended that Khaps issuing regressive diktats must be checked, push systemic reform to guarantee independence of law enforcers and law courts, fill top police ranks on merit, check jurisdictional ambiguities impeding law and order, and accord stringent punishment to public functionaries failing their duties whether by not registering cases or scotching investigations. Hitting out at political and religious leaders for making controversial comments on women , Justice Verma committee has recommended framing of laws to disqualify politicians who issue statements “reinforcing gender bias”.
Most importantly, the Panel is demanding “changes in the Representation of the People Act, and is calling for barring from electoral activity candidates accused of offences taken cognizance of by a magistrate.” It is a pity that a Parliament which consists of people with criminal records is unlikely to pass any effective Criminal Law Amendment reform because there is a distinct conflict of interest. However, the committee has made proposals for ridding the legislature of persons who have criminal cases pending against them. One wonders if the parliament will ever act on this proposal. Justice Verma and his team members must have known that similar recommendations, for electoral reforms by various commissions, are gathering dust. The first report on electoral reforms was submitted by Goswami Committee in 1990. The next was the Indrajit Gupta Committee’s report in 1998, in which the panel said: “what is needed is an immediate overhauling of the electoral process whereby elections are freed from the evil influence of all vitiating factors, particularly, criminalization of politics. It goes without saying that money power and muscle power go together to vitiate the electoral process and it is their combined effect which is sullying the purity of electoral contests and affecting free and fair elections.” Soon after the Justice Verma report was made public, Union law minister Ashwani Kumar stated that he had asked the Law Commission of India to recommend steps to prevent people with criminal charges pending against them from being elected to Parliament and assemblies. This is a clear indication that the government has no intention of doing anything in this regard.
Most crucial question is: what about the mindset that leads to violence and considers women as bodies, commodities and targets? The media and Bollywood stars have come out to show their concern after the incident. But they also need to ask themselves whether they are not responsible for commodifying women and making men violent. Some of our actors and cricketers promote alcoholism, deception, indecency and immorality through the advertisements of the brands they endorse. If we want to stop violence and create a society where girls and women are accepted, respected and given dignity and freedom, then all of us must begin with ourselves. All of us are part of the problem and, therefore, all of us can and must be part of the solution. “If we want true equality between men and women, then we need nothing less than a cultural revolution”. Says Kamla Bhasin a women’s activist. Changing the mindset requires a cultural tsunami. Before we stop violence against women, we need to demolish innumerable religious, cultural, and linguistic practices that are considered normal. Traditional folk songs, including some customs, which demean and trivialize the role and place of women in the family and the communities and the words like ‘pati’, and ‘swami’ for husbands must go.
President Pranab Mukherjee, on his republic day address to the nation, asked the elected representatives of the country to win back people’s confidence and channel the anxiety among the youth towards change. He advised the nation to “reset its moral compass” while underlining the need to ensure gender equality. Referring to student’s gang-rape and murder in Delhi, he said the tragedy shattered complacency and described the young woman as a symbol of all that new India strives to be. Nothing should be allowed to spur cynicism, as cynicism is blind to morality. We must look deep into our conscience and find out where we have faltered.
Let us hope that the legislators act soon on the recommendations in the report which is remarkably innovative, and indeed can indeed bring in a profound transformation in a troubled society.
Bikkar Singh Lalli is a Member of the UBC Senate.
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