Saturday February 3, 2013
Ordinance spares police, armymen By Sandeep Joshi
In this file photo people hold placards during a protest to demand justice for rape victims, at Jantar Mantar in New Delhi (PTI)
NEW DELHI: Verma panel recommended fixing responsibility on superior officers
The Centre has not accepted the recommendations of the Justice Verma Committee regarding punishment to government servants, particularly police and army personnel, involved in acts of crime against women.
The ordinance, cleared by the Union Cabinet on Friday, aims at making changes in various sections of the Indian Penal Code dealing with crime against women.
For instance, the three-member panel had suggested changes in law to fix offence of breach of command responsibility so that a police or armed forces officer could be charged if he is found to have failed to take steps to stop crime against women committed by personnel under his command.
Whoever is guilty of the offence of breach of command responsibility shall be punished with rigorous imprisonment for a term which shall not be less than 7 years, but may extend to 10 years, the committee had suggested.
But the Union Cabinet did not accept this recommendation saying it fixes vicarious criminal responsibility on the leader of a force for acts of subordinates.
Similarly, the committee was also very vocal against misuse of the Armed Forces (Special Powers) Act by army personnel in extremism-affected areas and suggested that sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law.
We notice that impunity for systematic or isolated sexual violence in the process of internal security duties is being legitimised by the Armed Forces Special Powers Act, which is in force in large parts of our country Serious allegations of persistent sexual assault on the women in such areas and conflict areas are causing more alienation, the committee had noted.
There is an imminent need to review the continuance of AFSPA and AFSPA-like legal protocols in internal conflict areas as soon as possible, it suggested.
But the government rejected the panels recommendation to amend the AFSPA where no sanction would be required if armed forces personnel were accused of committing a crime against women.
The committee also recommended that no sanction would be required for prosecution of a judge or magistrate or public servant if accused of crimes against women. But the Cabinet did not agree to this provision to avoid false complaints against government officers.
The panel suggested some changes in the IPC to ensure that a panchayat member or officer of an area report offences relating to crime against women to the nearest magistrate so cases of crime do not go unreported. But the Cabinet rejected it saying that it could be misused.
The Ministry of Home Affairs-appointed panel also recommended deletion of a section of the IPC so that forced sex by husband with his wife during separation process should be brought under the definition of rape. But the government decided against it fearing that it could hamper chances of reconciliation. It, however, enhanced the punishment for the crime from two years to maximum seven years of imprisonment.
February 3, 2013
Wanted: A Verma ordinance The ordinance on sexual assault cleared by the Union Cabinet and signed into law on Sunday by the President is problematic, not in what it seeks to achieve, but in what it does not attempt to redress. If this is all that the government intends to do on the basis of the Justice Verma Committee report, then, quite worryingly, the nationwide protests and expressions of outrage at rape and other sexual crimes against women have had little effect on policymakers. The committees recommendations relating to marital rape, police reform, and prosecution of security personnel charged with sexual assault under ordinary criminal law, have all been blanked out. On some issues, like the imposition of the death penalty, the ordinance does exactly the opposite of what the report recommended. This, despite the overwhelming majority of womens organisations concurring with the committees reasoned stand. If the government adopts the reports recommendations in toto or very substantially as it ought to were it to be serious about fighting the menace of sexual violence the Armed Forces (Special Powers) Act cannot survive in its present form. And, policing and police administration will have to change drastically. In cherry picking from the report, the government appears to have dumped the hard parts and held up a diluted version as its core. The cabinet seems to have taken up the least controversial recommendations, and packed them into an ordinance to avoid any extended debate on the wider issues and sidestep criticism that it was slow to act.
The other recommendations in the report might need further study, debate and fine-tuning before implementation, but they must remain on the reform agenda for prompt implementation, and not be brushed aside in silence. Whether there was an urgent need to bring in an ordinance when Parliament is to meet in three weeks for the budget session is questionable, especially when the provisions cannot be applied retrospectively to the Delhi rape-and-murder case. However, sexual crimes against women have not come down since the sensational Delhi case, and the government must have felt the ordinance could be of some deterrent and punitive value. So long as the bill to replace the present ordinance is well-drafted and comprehensive, there will be little room for complaint. The real problem, then, is not what the government has done, but what it appears unwilling to do. By all accounts, it does not have the political will to push ahead with the most substantive points in the Justice Verma Committee report. And this is unlikely to change without sustained pressure from civil society and peoples movements.
February 4, 2013
The stop-gap fix on women safety
The Ordinance seems to be more out of short term electoral compulsions than long term systemic change
By Harini Calamur
Justice JS Verma speaks during a press conference after submitting his committees report to the government in New Delhi on Wednesday. The committee was set up to recommend measures to improve laws dealing with sexual offences. Committee member Justice Leela Seth is also seen. (PTI)
And, it comes to pass. The President of India, Pranab Mukherjee, signed the Criminal Law (Amendment) Ordinance 2013, after it was cleared by the Cabinet on Friday. The aim is to punish those who commit sexual violence against women. The Ordinance was based primarily on the recommendations of the Justice Verma Committee.
Most womens groups are up in arms at the Ordinance, which they believe has blunted the teeth of the Verma Committee recommendations. As Kavitha Krishnan, Secretary of the All India Progressive Womens Association (AIPWA) states, the problems with the ordinance are:
1) Gender neutrality retained, which means that a man can accuse a woman of rape
2) Criminalisation of consensual sexual activity between 16-18 years retained
3) Marital rape not exemption retained they actually shamelessly admit that marital non-consensual sexual intercourse was criminalised by Verma but they will not! So non-consensual is not rape as long as its within marriage and by extension the lower punishment for rape of separated wife is retained.
4) Command responsibility rejected
5) Vermas rejection of requirement of sanction in case of judge/magistrate/public servant and army officer (the latter thru amendment in AFSPA) has not been accepted
UPA 2 has faced two major public protests in the last four years. The first was the anti-corruption movement led by Anna Hazare that became a lightning rod for disenchanted citizens. There was a demand for a Jan Lok Pal Bill that, the protesters believed, would solve all issues of corruption. The Government promised a Jan Lok Pal, but could not deliver. The second major protest was after the brutal Delhi Gang rape case. The UPAs first reaction to the protesters was to water canon them, but then, seeing the unabated fury of people, it did promise stronger legislation aimed at curtailing violence against women, and stronger punishment for those who commit these acts of violence. With the budget session of Parliament likely to be stormy, if parliamentarians turn up to work, and elections around the corner the Government decided to follow what was called the Politicians Logic by one of the most famous civil servants, albeit fictional, in history, Sir Humphrey Appleby ( Yes Prime Minister)
We must do something.
This is something.
Therefore we must do it.
While womens organizations are up in arms, the general message that is going out is that Government has heard the peoples anger and responded to it. First by setting up the committee, and the second by not waiting for Parliament to reconvene, passing an ordinance that will lead to better safety and security for women.
The ordinance has been passed in record time less than 10 days after the Justice Verma Committee presented its recommendations. It seems to be the Governments way of telling some very angry women, across the country and across the political spectrum look we have done something. But, this something seems to be more out of short term electoral compulsions than long term systemic change. Sir Humphrey Appleby has the apt description once again To watch a Cabinet Minister in action is to watch the endless subordination of important long-term issues to the demands of urgent trivia. In this case, replace the Cabinet Minister with the Cabinet and the ordinance will make sense. Laws cannot be made to assuage public opinion. They have to be passed to make a tangible difference to society.
As per the Constitution, the President can promulgate an ordinance when the Parliament is in recess, but the ordinance itself has to be laid before the houses of Parliament and debated and passed, or it will lapse. But, come before Parliament it must. There is no point outraging on the Ordinance it is in any case a stopgap measure. The thing to do is to ensure that the agenda is not diverted. That Members of Parliament are lobbied to do the right thing. That rape of any form, within the house or outside it; by a stranger or by a family member; by a friend or a lover; by a husband or a boyfriend; by a man in uniform or a politician is taken to be what it is a crime. A crime that is punished severely.
But, this needs to be more than the debate on just what constitutes a crime and what is the quantum of punishment. While we may all want more severe punishments for the guilty, what would also help is a road map that puts into place the collection and collation of evidence, the use of science in crimes like this, training personnel to deal with these, and the building of system that deal with rape, sexual assault and the aftermath. Furthermore, there needs to be debate on systemic reform. On the police and judicial reforms that have been called for by Justice Verma committee. On the curtailing of powers of social groups like the khaps, of dealing with issues like sex education, and the issues posed by political parties choosing men accused of sexual assault or rape to fight elections on their behalf. These may not all happen at the same time, but there needs to be a plan that ensures that this comes to pass.
The ordinance is short term. The fight for laws that ensure better safety and security for women, a better system of policing for communities, and a better criminal justice system for all is the big one. There is still time to get the law that is more effective.
February 3, 2013
Not by death alone
The Centre has done well to accept major recommendations of the Justice Verma Committee on the amendments to various criminal laws dealing with rape and other forms of sexual harassment to women, though it is not clear why it took recourse to an Ordinance when the Parliament session is due in less than three weeks. On Sunday, President Pranab Mukherjee promulgated the Ordinance which should be passed by Parliament within six months. The Union cabinet has rightly expanded the scope of sexual crimes by replacing rape with the expression sexual assault and included inappropriate touching, stalking and acid attacks among sexual offences and provided for stringent punishment.
But in a major departure from the Verma Committee report, the UPA government has proposed death penalty in the so-called rarest of rare cases which will be subject to interpretation. The committees recommendation for a life term extending to the whole life of the accused in extreme cases was based on sound argument that death penalty for any offence is considered too barbaric and completely uncivilised in modern times, and across the world, more than 150 countries have dropped such provision from their statutes. There is absolutely no evidence to suggest that death penalty acts as deterrence to crimes. If the Centre wanted to send out a message that the accused in the Delhi rape case will get the most stringent punishment, pandering to jingoistic demands, it is not really so because any amendment cannot be applied retrospectively. Hence, the UPA government will do well to drop the proposal for death penalty and go by the sane recommendations of the Verma Committee report.
In other respects, the proposals for bringing eve-teasing, voyeurism, groping, stalking, including monitoring of email and acid attacks as punishable offences with enhanced jail terms, are exceptional and should go a long way in helping women to feel safer on roads, provided in such cases the police act promptly and swift punishment is handed out to the accused. Some of the womens and human rights organisations have taken exception to the government not accepting the suggestion of the Verma Committee to recognise marital rape as a crime and to try sexual crimes by members of the armed forces under ordinary criminal laws. These are larger issues which need much deeper study. The new set of amendments should come into force as quickly as possible, but as everyone knows, their effectiveness will depend on how efficiently they are acted upon by the police, the prosecution and the judiciary.