Friday, February 01, 2013

Verma Committee Report: A Two-Part Note

The Criminal Law Amendments suggested by the Justice Verma Committee are synopsised in a two-part guest post by Mrinal Satish and Shwetasree Majumder, who worked with the Committee. Mrinal is Associate Professor at National Law University, Delhi and Shwetasree is an IP attorney and founder of the law firm, Fidus Law Chambers.
The Justice Verma Committee was set up by the Government of India after the gruesome gang rape incident that occurred in Delhi on December 16, 2012. The Committee was asked to review existing laws and suggest amendments to criminal law to effectively deal with instances of sexual violence. The Committee, however, did not view its mandate as only drafting new laws. It placed its mandate within the framework of the Constitution. The Committee grounded its report in the State’s obligation to secure the fundamental rights of its citizens, which includes the right of every person to assert one’s individual autonomy. In the context of women, if they are denied autonomy, even by actors other than State, the duty of the State does not diminish only on that ground. The failure to secure rights of women results in the State denying the right to equality and dignity that women are guaranteed under the Constitution. [See pages 65-67 of the Report]. The Committee’s report, including the new offences that have been created, and modifications suggested of the existing ones need to be viewed within this Constitutional framework.
The Justice Verma committee has made wide ranging recommendations for changes to various laws that impact upon women’s right to equality and right to dignity. In this two-part synopsis, we focus on amendments made to the criminal law framework relating to sexual violence. In Part I of the synopsis, we discuss the set of new offences recommended by the Committee, including stalking and voyeurism. We also discuss the modifications suggested to Section 354 of the Indian Penal Code, which defines the offence of “outraging the modesty of a woman.” The offence has been re-christened as “sexual assault” and the terminology has been changed from archaic concepts of “modesty” to recognition of sexual autonomy, dignity and freedom. We also discuss amendments suggested to the Code of Criminal Procedure, 1973 (Cr.P.C.) and the Indian Evidence Act, 1872 (IEA). In Part II of the synopsis, we discuss amendments suggested to rape laws, the recommendation to introduce a new offence of trafficking, as also issues relating to medical examination of rape survivors. These synopses provide a summary and brief explanation of the changes recommended, and the reasons for these changes. They do not contain an analysis or a critique of the provisions.
Amendments to the IPC and the introduction of new offences
A.    Acid attacks:

The Committee highlights the heinous and yet commonplace nature of acid attacks in several Asian and African countries including India (page 146). Although the Committee notes that traditionally the offence is dealt with under Section 326 of the IPC, it observes that ”what happens when there is permanent physical and psychological damage to a victim, is a critical question and law makers have to be aware that offences are not simply based on the principle of what might be called offence against the body, i.e., damage of the body, but they must take into account the consequences on the right to live with dignity which survives the crime” (page 147).  

The Committee notes that the Criminal Law (Amendment) Bill, 2012 includes the offence of voluntarily causing grievous hurt, through use of acid. Under the proposed Section 326A of the Amendment Bill, if a person causes permanent or partial damage to the body of another person by throwing acid on, or administering acid to that person, with the intention of causing injury, or with the knowledge that injury shall be caused, that person shall be guilt of the offence defined in Section 326A. The Amendment Bill has proposed a minimum punishment of ten years, and a maximum of life. It has also proposed that a fine of a maximum of rupees ten lakhs may be imposed, which shall be given to the victim.

The Committee makes some key modification to this provision. It recommends that the offence not be confined to only throwing acid on a person. It suggests that if a person causes permanent or partial damage to the body of another person, by using means other than throwing acid, such person and acts, should also be brought within the purview of the section. The Committee also recommends that the victim should receive Central and State government assistance through a compensation fund (See Para 8 page 148). It further recommends that instead of a fine, the convicted person be liable to pay compensation to the victim, which should be sufficient to at least cover the medical expenses of the victim.

The first explanation to the section takes the offence beyond the specific sphere of acid attacks to other violent hate crimes against the body of a woman, which maim or permanently damage or disfigure her, such as forced circumcision of a woman or female genital mutilation. The second explanation pre-empts an argument against liability if the victim ‘reverses’ the visible effects of the attack, through medical treatment. This formulation captures the Committee’s recognition that the offence is not only about physical damage, but also about right of a person to live with dignity.

The Criminal Law (Amendment) Bill, 2012 proposes the addition of Section 326B which punishes the voluntary throwing or attempt to throw acid on a person. The offence is punishable with imprisonment for a minimum period of five years, which may extend to seven. Along the lines of its recommendations for modifying Section 326A, the Committee recommends the broadening of Section 326B to include any other means to achieve the purpose of permanently or partially damaging a person’s body.

B.     Sexual Assault

Under the current Section 354 of the Indian Penal Code, a person who “assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty” is punished with imprisonment of upto two years, or fine, or both. The focus of the provision, rather unfortunately is on “outraging of the modesty” of a woman and invariably the defence against the application of such a provision has centred around what constitutes a woman’s modesty, whether the woman in question was of such a character to claim that her modesty was outraged, whether young girls below the age of puberty have ‘modesty’ etc.  Further, under the current formulation the offender can argue that he did intention to “outrage the modesty” of the woman, or that he did not know that his actions would result in the “modesty of the woman” being outraged. Hence, the need for change was palpable, so as to change the focus of the crime from notions of “modesty” to violation of sexual autonomy. The recasting of the provision therefore needed to be wider in scope, cover a range of offences (and consequently provide higher degrees of punishment) and be a gender neutral provision that criminalised unwelcome sexual acts of varying degrees of severity. 

The Committee has recast the provision in its entirety to criminalise all acts of non-penetrative sexual violence under the umbrella term of ‘sexual assault.’ This ranges from the intentional contact of a sexual nature with another person without their consent, to using words, acts or gestures towards or in the presence of another person to create an unwelcome threat of a sexual nature or which result in an unwelcome advance. In its recommended avatar the provision shifts focus from the “modesty” of the woman being the lens to view the offence to an assessment of when sexual assault can be said to have occurred. The Committee also recommends the repeal of Section 509 of the IPC, since the acts criminalized under that section are covered in the recast Section 354.
Drawing from the Canadian approach, the Committee explains in the context of the recast Section 354 that while the offence of sexual assault should include all forms of non-consensual non-penetrative touching of a sexual nature, the ‘sexual nature’ of an act would be established if: “viewed in the light of all the circumstances…the sexual or carnal context of the assault [is] visible to a reasonable observer.” The Committee observes that the courts will examine factors such as the part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, threats, intent of the accused and any other relevant circumstances but warns that it should not be a prerequisite that the assault be for sexual gratification. The motive of the accused is ‘simply one of many factors to be considered.”(page 112).

The Committee also recommends change in the sentencing framework. For an act that involves physical contact, a maximum penalty of imprisonment for five years has been recommended. For acts that do not involve physical contact, a maximum sentence of one year has been suggested.

C.     Public Disrobing of a woman:

The Committee takes note of various instances across the country of humiliating a woman by publicly disrobing her. Recognizing this as a crime usually done with the intention of publicly humiliating a woman, the Committee proposes a separate provision to deal with this act. It recommends enactment of Section 354A to deal with this offence. A minimum sentence of three years, and a maximum sentence of seven years is recommended for this new offence.

D.    Voyeurism

The Committee recommends the introduction of a new offence of voyeurism. Although the Information Technology Act covers invasion of privacy using electronic devices, the IPC does not contain a provision that defines and punishes voyeuristic acts. This new section achieves that purpose. The provision covers two types of instances (1) where the perpetrator  watches the woman secretly, and (2) where the woman  might have consented to the perpetrator watching her (for instance, when the woman might be in a relationship with the  perpetrator) but not of any third party watching her at the perpetrator’s behest. Watching a woman in these circumstances amounts to voyeurism if she was engaged in a 'private act', which, in the first explanation to the provision is defined as “an act carried out in a place which, in the circumstances, would reasonably be expected to provide privacy, and where the victim's genitals, buttocks or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the person is doing a sexual act that is not of a kind ordinarily done in public.” The second explanation covers instances where a woman may have consented to her private images being captured by the perpetrator (such as, once again in instances of a relationship between them) but not to such pictures being disseminated by him to third parties. The recommended punishment for the offence of voyeurism is of imprisonment of one to three years and with fine, and in the event of a second or subsequent conviction with imprisonment for a minimum of three years which may extend to seven years and also with fine.

E.     Stalking

The Committee recommends the introduction of a new offence of stalking. “[T]he Committee was surprised to find out that offences such as stalking, voyeurism, ‘eve-teasing’etc. are perceived as ‘minor’ offences, even though they are capable of depriving not only a girl child but frail children of their right to education and their freedom of expression and movement.” Therefore, the Committee takes the view that “it is not sufficient for the State to legislate and establish machinery of prosecution, but conscious and well thought out attempts will have to be made to ensure the culture of mutual respect is fostered in India’s children. Preventive measures for the initial minor aberrations are necessary to check their escalation into major sexual aberrations.” (Page 215)

The offence of stalking (which is gender neutral) is committed in any one of three situations listed below:

Situation 1: Where a person
(i)             follows another and
(ii)           contacts, or attempts to contact them
(iii)          in order to foster personal interaction
(iv)          repeatedly
(v)           despite a clear indication of disinterest, or

Situation 2: Where a person
(i)              monitors the use by another person of the internet, email or any other form of electronic communication, or
Situation 3: Where a person
(i)             watches or spies on another person,
(ii)           in a manner that results in a fear of violence or serious alarm or distress in the mind of the other person, or
(iii)          in a manner that interferes with the mental peace of the other person

The provision includes three exceptions, where the action will not amount to stalking:

(a) where the course of conduct is pursued for the purpose of preventing or detecting crime and the person accused of stalking has been entrusted with the responsibility of prevention and detection of crime by the state; or,
(b) where the course of conduct  is pursued under any enactment or rule of law, or to comply with any condition or requirement imposed by any person under any enactment; or,
(c) where, in the particular circumstances the pursuit of the course of conduct was reasonable.

The punishment recommended for the offence of stalking is imprisonment of either description for a term which shall not be less than one year but which may extend to three years along with a fine.

Amendments to the Code of Criminal Procedure
The Criminal Law (Amendment) Bill, 2012 suggests amendments to five sections of the Criminal Procedure Code, 1973 (Cr.P.C). In light of its mandate and the changes suggested to the I.P.C. and other substantive laws, the Committee has suggested changes to various other sections of the Cr.P.C. We have summarized these changes and provided a brief commentary on the impact they will have, if enacted.

A.    Section 39, Cr.P.C.
Section 39 imposes a duty on the public to report offences if they become aware of commission or the intention of a person/s to commit the offences listed in sub-section (1) of that section. If a person intentionally omits to inform the police or the nearest magistrate, such omission is punishable under Sections 176 and 202 of the Indian Penal Code, 1860 (I.P.C.), both of which provide a term of imprisonment which may extend to six months. Currently, Section 39(1) of the Cr.P.C. does not include sexual offences. The Committee recommends that Sections 326A, 354, 354A, 354B, 354C, 376(1), 376(2), 376A, 376B(2), 376C, 376D and 376F be added to the list of offences in Section 39(1), Cr.P.C.
This proposed change in the law recognizes the under-reporting of rape cases, because of survivors being discouraged by individuals who become aware of the incident. If the law is amended as suggested, a person who becomes aware of an incident of sexual abuse will be legally bound to report the crime.

B.     Section 40A, Cr.P.C.
Section 40 of the Cr.P.C. is along the lines of Section 39. It casts a duty on officer employed in connection to the affairs of a village and residents of a village to report the commission of offences listed in Section 40(1). An officer employed in connection to the affairs of the village includes the members of the village panchayat, and others in similar leadership roles. The Committee recommends that a new section, Section 40A be added to the Cr.P.C. This section would obligate “every officer employed in connection with the affairs of a village, and every person who is part of a village panchayat” to report without delay, the commission (or the intention to commit) offences listed in that section. The offences listed are Sections 326A, 326B, 354, 354B, 354C, 376(1), 376(2), 376(3), 376A, 376B(1), 376B(2), 376C and 376D of the IPC.
This suggested amendment recognizes the fact that in rural areas, the sarpanch or a member of the village panchayat is often informed about the commission of a sexual offence. Panchayats often engage in getting the parties to compromise, and discourage the survivor and her family from reporting the incident to the police. If this suggestion of the Committee is accepted, the members of the panchayat and any other person in a leadership role in a village will be legally bound to report the offence to the police. 

C.     Section 54A, Cr.P.C.
The Committee recommends amending Section 54A of the Cr.P.C., which deals with “identification parades.” The purpose of an identification parade is for a person who has information about the crime and/or the offender to identify a person who is suspected of having committed the crime. In an identification parade the person identifying generally points out the person to the police officer conducting the parade. Recognizing that the current process might not be disabled-friendly, the Committee has proposed that in cases where the person identifying is physically or mentally challenged, a different procedure be used. Instead of a police officer, such parade shall be conducted by a judicial magistrate, who shall devise a method of identification, which the physically or mentally challenged person is comfortable with. The Committee has also suggested that the entire process be videographed.

D.    Section 154, Cr.P.C.
The Criminal Law (Amendment) Bill, 2012 proposes amendments to Section 154(1), Cr.P.C. which deals with filing of First Information Reports. The amendment proposed by the Bill is that in cases involving Sections 354, 375, 376, 376A, 376B and 509 of the IPC, FIRs should be recorded, as far as possible, by a woman police officer.
The Committee makes four additional suggestions. First, it adds all sections in the IPC dealing with sexual offences against women (including those proposed by the Committee) to the list of offences already suggested by the Amendment Bill. Second, it suggests that if the rape survivor is a woman, then she should be provided legal assistance, as well the assistance of a healthcare worked and/or a women’s organization. Third, in the event that the survivor (male or female) is temporarily or permanently physically challenged, the police officer is required to record the FIR at a place convenient to the survivor, in the presence of a special educator or an interpreter. The Committee also recommends that the process be videographed. The final recommendation is that after recording the survivor’s statement, the police should get the survivor’s statement recorded by a judicial magistrate.
Filing of the FIR is a major hurdle that a rape survivor faces. The atmosphere of a police station is not friendly to reporting a sexual crime. It has been alleged that police officers are not sensitive while recording FIRs for rape. Recognizing that women might be more comfortable in reporting the offence to a female police officers, previous law reform initiatives, including the Criminal Law (Amendment) Bill, 2012, have suggested that FIRs in sexual offences be recorded by women police officers. If the Committee’s recommendations of providing legal assistance to a rape survivor, as well as the assistance of a healthcare worker and/or a women’s organization is accepted, the process will be less intimidating than it currently is. This would result in rape survivors being provided better access to the legal system.

E.     Section 160, Cr.P.C.
Section 160 of the Cr.P.C. deals with the power of the police officer to summon a person acquainted with the facts of the case. This is generally done for recording of the statement of the witness, and the person may be called to a police station. The existing provision, however, provides that no woman or a male under the age of fifteen shall be questioned, except at their residence. The Criminal Law Amendment Bill proposes to extend the age for men, providing that a man under the age of fifteen or over the age of sixty five shall be questioned at his residence. The Committee recommends that a physically or mentally challenged person also be questioned at his/her residence.

F.     Section 164, Cr.P.C.
Section 164 of the Cr.P.C. deals with the recording of confessions and statements by Magistrates. The Committee recommends that as soon as the commission of a sexual offence is brought to the attention of the police, the police shall arrange to have the survivor’s statement recorded by a Magistrate. It further recommends that in the case of a mentally or physically challenged person, such statement, the recording of which shall be videographed, shall be taken with the assistance of an interpreter or a special educator. It also recommends that in the case of mentally or physically challenged persons, this statement before the Magistrate shall be considered as their examination-in-chief. This implies that the person will not have to re-assert the statement at trial, but only be available for cross-examination.
A major reason for acquittals in rape cases is the survivor turning hostile. In a large number of cases, the survivor retracts from her prior statement to the police, due to societal and other pressures. The consequence of getting a statement recorded by a magistrate is that the survivor cannot claim that he/she did not make such statement, or dispute its contents. This would ensure that the person does not retract from his/her statement because of extraneous reasons. On the other hand, if she does retract, he/she will be liable to prosecution for making false statement under oath.

G.    Section 197, Cr.P.C.
Section 197(1) of the Cr.P.C bars a court from taking cognizance of an offence, if it is committed by a judge, magistrate or a public servant, while acting or purporting to act in the discharge of his official duties, unless sanction is granted by the appropriate government. The Committee recommends that the section be amended to lift the bar on taking cognizance in sexual offences, as well as the offence of trafficking. Under the current framework, if a public servant commits an offence, including a sexual offence, the government has to grant sanction for prosecution. Delay in granting sanction, or cases where sanction is not granted leads to impunity in custodial rape cases. The amendment recognizes that committing an act of sexual violence cannot be a part of person’s official duties. Hence, the Committee recommends that sanction be required in sexual offence cases be removed.

H.    Section 198B, Cr.P.C.
The Committee recommends adding Section 198B to the Cr.P.C, by virtue of which a court is barred from taking cognizance of a report of marital rape, unless such report is made by the wife against her husband. This ensures that a third person does not interfere in a marital relationship, by filing a report of marital rape.

I.      Section 327, Cr.P.C.
Section 327(1) of the Cr.P.C. states that all trials shall be open to the public. However, sub-section (2) states that trials of cases under Sections 376, 376A-D shall be conducted in camera. In suggesting modification of the Criminal Law (Amendment) Bill, the Committee proposes that trials for all the new sexual offences that it has suggested also be in camera. The Committee however recommends that unless there are compelling reasons, only the examination in chief and cross-examination be in camera. The rest of the proceedings should be open to the public in order to ensure that there is a check on misogynistic and prejudicial practices in court proceedings. The Committee further recommends that the survivor be provided with the assistance of a person from a women’s organization through the trial.

J.      Section 357, Cr.P.C.
One of the amendments that the Committee suggests in the IPC is that, if convicted, the offender should be liable to pay monetary compensation to the victim. Consequently, amendments have been suggested to Section 357, Cr.P.C. which empowers courts to award compensation. The proposed amendment operationalizes the amendment to the IPC by suggesting the requisite changes to the Cr.P.C.
K.     Amendments to the First Schedule of the Cr.P.C.
In light of the seriousness of sexual offences, the Committee recommends that all the offences made punishable by the Amendment Bill be cognizable and non-bailable.

Amendments to the Indian Evidence Act (IEA)
The Criminal Law (Amendment) Bill suggests amendments to Sections 53A, 114A and 146 of the Cr.P.C. The Committee suggests further modifications to these proposed amendments, as well as an amendment to Section 119 of the Evidence Act.
A.             Amendments to Sections 53A and 146, IEA
Sections 53A and 146 of the IEA deal with the issue of sexual history of the rape survivor. The Amendment Bill has proposes that in sexual offences, where consent is an issue, the character or past sexual history of the survivor shall not be relevant in deciding on the issue of consent. The Committee recommends that past sexual history should not be relevant in all sexual offences. It further recommends that past sexual history be considered irrelevant not only in determination of the question of consent, but during the determination of any other fact during the trial process.
The proviso to Section 146 bars the rape survivor being asked questions about her sexual history during cross-examination. The Amendment Bill makes the section gender neutral and adds a few more offences to the existing list. The Committee recommends that the bar on asking a rape survivor questions about her sexual history should extend to all sexual offences. In sum, the past sexual history of the survivor will not be a relevant fact in a prosecution for any sexual offence.

B.              Amendment to Section 114A, IEA
Section 114A of the IEA states that in a prosecution for rape under certain clauses of Section 376(2) of the Indian Penal Code, if sexual intercourse is proved by the prosecution, and the issue is one of consent, and the woman testifies that she did not consent, the Court shall presume that the lack of consent. In light of the new offences recommended by the Committee, it suggests that the presumption apply to all the clauses of Section 376(2), as also to the offence of gang rape defined by the newly proposed Section 376C. 

C.              Amendment to Section 119
The final amendment suggested to the IEA is with respect to Section 119. Section 119 referred to people with speech disabilities as “dumb witnesses.” The Committee recommends that an amendment be made to the section and that “dumb” be replaced by “persons who are unable to communicate verbally.” It also recommends that in recording the evidence of such persons, the Court shall take the assistance of a special educator or interpreter, as required, and that the process be videographed.
The authors have prepared this synopsis in their individual capacities. They do not purport to represent the views, or speak for, the Justice Verma Committee. This synopsis has also been published on Bar & Bench.
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