LAW RESOURCE INDIA

Supreme Court has already Clarified that it will not Encourage Prostitution

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

Law Resoursce India New Delhi 04/11/2014

In view of the order dated 26 July 2012 in Criminal Appeal 135/2010Budhadev Karmaskar vs State of West Bengal & Ors the present debate and controversy stirred up by the NCW Chairperson Lalita Kumarmanglam on Legalization of sex trade is a contempt of Supreme Court Orders. The National Commission of Women has been a party to the case and are aware of the Bench clarification dated 26 July 2012.

Speaking to the Times Of India she said that “I will only speak about the issue after the national consultation on November 8,” . “It is my personal and professional view that sex work should be legalized but the commission must make an informed decision and I am open to listening to all views. I will be using a lot of time next week to hold informal consultations on the issue, talking to all advocacy groups and others to understand what their apprehensions are.”

On October 28, Kumaramangalam told a daily that legalization will bring down trafficking of women and lower the incidence of HIV and other sexually-transmitted diseases. She also said she intends to put forth the proposal at the November 8 meet of the SC appointed Panel.

Bharti Dey of Durbar Mahila which supports the Legalisation Debate has stated “Police very often get paid to let off traffickers. Regulation will decriminalize the trade,” says Dey, whose organization currently runs self-regulation units and has sent at least eight traffickers to jail. She also points out that many of those entering the profession are extremely poor, have few options and know what they are getting into. “But they make it to our communities through traffickers and middlemen. Legalizing will remove these middlemen,” she says.

Supreme Court Lawyer and President of Shakti Vahini Ravi Kant while opposing the statement of the NCW Chairperson statement stated “Prostitution is Organised Crime and Violation of Fundamental Rights. Trafficking and sexual slavery is worst form of Human Rights Violation. No women joins this inhuman trade out of choice. More then 95% of the women have been trafficked and forced into the sex trade”.

rtr26efdHe further elaborated that ” Immoral Traffic Prevention Act 1956 criminalises the organised crime of Prostitution. Organised Prostitution creates a demand for young girls for the brothels which is met by trafficking of minor girls from across the Country.Giving Prostituion a legal status will be giving boost to demand of young minor girls who will be trafficked. In countries where such legalization has happened it has led to exploitation of women and girls and also commodification of women bodies.

He added that there here is no doubt that women who have been caught in the sex trade  need access to all Government facilities and schemes and efforts must be made to see that they join the mainstream and are properly rehabilitated. Also those who indulge in this organised crime of human trafficking which leads to kidnapping of young girls from across the country need to be properly punished.

On the role of the Governmental agencies he lamented “The sad part is that inspite of various recommendations from the Supreme Court in various cases no geniune efforts have been made by any Government to see that this social malice which results from Organised Crime be eradicated”.

Kant further stated “The statement of the National Commission for Women Chairperson for legalising prostitution is deplorable. It is time that the Government of India ammends the Immoral Traffic Prevention Act and brings in harsher punishments to the people who are involved in this organised crime”.

The Supreme Court in its order dated 26 July 2012  has clarified that its endeavor to provide right to life and access to governmental schemes should not be construed as an encouragement to prostitution. The clarification had come from a bench of Justices Altamas Kabir and Gyan Sudha Mishra after additional solicitor general P P Malhotra had drawn the court’s attention to its July 19 order in which it had sought suggestions from the SC-constituted panel on creating “conditions conducive for sex workers who wish to continue working as sex workers with dignity”.

Malhotra had said there was a danger of the order being construed as an incentive to indulge in an activity that had been termed as an offence under the Immoral Traffic Prevention Act, 1956.

POLICE BUSTING AN INTERNATIONAL RACKET

POLICE BUSTING AN INTERNATIONAL TRAFFICKING RACKET

The Judges on the bench passed had passed separate orders, but both meant to clarify that the panel would recommend steps to create “conditions conducive for sex workers to live with dignity as per provisions of the Constitution Article 21″. 

Justice Kabir added a precautionary clarification — “The above modification should not be construed to mean any attempt made to encourage prostitution.”

Hearing the Petition  Justice Mishra had clarified, “I prefer to add…sex workers have a right to live with dignity but the collective endeavour must be on part of the sex workers to give up the trade in case they are given alternate platform.”

The Detailed Order of the Bench  Dated 26 /07/2012 is as follows :

1. CRLMP.NO.12415 of 2012, has been filed on behalf of the Union of India, for modification of the order passed by this Court on 19th July, 2011, referring certain issues to the Committee which had been constituted by the said order itself.

2. The first modification sought by the Union of India is for deletion of the Durbar Mahila Samanwaya Samiti, from the panel. The second modification sought is with regard to the third term of reference, which reads as follows:-

(3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.

3. Appearing in support of the application, the learned ASG, Mr. P.P. Malhotra, submitted that the Samiti in question had been actively advocating the revocation of the Immoral Traffic(Prevention) Act, 1956, and had also been advocating the recognition of sex trade being continued by sex workers. The learned ASG submitted that the continuance of such Samiti in the panel is giving a wrong impression to the public that the Union of India was also inclined to think on similar lines. The learned ASG submitted that this wrong impression should be removed by excluding the Samiti from the panel.

4. As far as the second issue is concerned, the learned ASG submitted that wording of such reference could be suitably modified so as not to give an impression that the Union of India was in favour of encouraging the sex workers, in contravention of the provisions of the aforesaid Act.

5. We have heard Mr. Pradip Ghosh, learned senior advocate and Chairman of the Committee, as also learned senior advocate, Mr. Jayant Bhushan, who is also a member of the Committee and its co- Chairman and Mr. Grover, learned senior advocate, on the issue.

6. It has been submitted by Mr. Ghosh that at the meetings of the Committee, the members of the Samiti had contributed a great deal towards the understanding of the problems of the sex workers and it was not as if the said Samiti was encouraging sex trade, but were providing valuable inputs into the problems being faced by people engaged in the trade. Mr. Ghosh, Mr. Grover, and Mr. Bhushan, in one voice urged that the presence of the Samiti in the Committee was necessary even to function as a sounding board in respect of the problems that are faced by this marginalised and unfortunate section of society.

7. We agree with the submissions made by Mr. Ghosh, Mr. Grover and Mr. Bhushan, learned senior counsel, and are not, therefore, inclined to delete the Samiti from the Committee, as prayed for by the Union of India, and such prayer is rejected.

8. As to the second issue, it will not in any way make any difference to the terms of reference, if the wording of the third term of reference, is modified to the following effect:-

“Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution.”

9. The above modification, should not, however, be construed to mean that by this order, any attempt is being made to encourage prostitution in any way.

10. CRLMP.NO.12415 of 2012, is, therefore, disposed of in term of the aforesaid order.

11. Let this matter now be listed for consideration of the Sixth and Seventh Interim Reports, filed by the Committee, on 22nd August, 2012, at 3.00 p.m.

12. Let this Bench be reconstituted on the said date and time for the aforesaid purpose.

.………………J. (ALTAMAS KABIR) NEW DELHI; JULY 26, 2012.

ORDER

1. While concurring with the views of my learned brother Justice Altamas Kabir, I prefer to add in regard to the second issue that this Court should not be misunderstood to encourage the practice of flesh trade or advocate the recognition of sex trade merely because it has raised the issue to emphasize the rehabilitation aspect of the sex workers, for which this Court had taken the initiative right at the threshold. I consider this essential in order to allay any apprehension which prompted the Union of India to move this application for modification, by highlighting that the sex workers although have a right to live with dignity as the society is aware that they are forced to continue with this trade under compulsions since they have no alternative source of livelihood, collective endeavour should be there on the part of the Court and all concerned who have joined this cause as also the sex workers themselves to give up this heinous profession of flesh trade by providing the destitute and physically abused women an alternative forum for employment and resettlement in order to be able to rehabilitate themselves. I, therefore, wish to reiterate by way of abundant caution that this Court should not be perceived to advocate the recognition of sex trade or promote the cause of prostitution in any form and manner even when it had stated earlier in its terms of reference regarding conditions conducive for sex workers who wish to continue working as sex workers with dignity.

2. Thus, when we modify the earlier term of reference and state regarding conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution, the same may not be interpreted or construed so as to create an impression or draw inference that this Court in any way is encouraging the sex workers to continue with their profession of flesh trade by providing facilities to them when it is merely making an effort to advocate the cause of offering an alternative source of employment to those sex workers who are keen for rehabilitation. When we say conditions conducive for sex workers to live with dignity, we unambiguously wish to convey that while the sex workers may be provided alternative source of employment for their rehabilitation to live life with dignity, it will have to be understood in the right perspective as we cannot direct the Union of India or the State Authorities to provide facilities to those sex workers who wish to promote their profession of sex trade for earning their livelihood, except of course the basic amenities for a dignified life, as this was certainly not the intention of this Court even when the term of reference was framed earlier.

3. We, therefore, wish to be understood that we confine ourselves to the efforts for rehabilitation of sex workers which should not be construed as facilitating, providing them assistance or creating conducive conditions to carry on flesh trade for expanding their business in any manner as it cannot be denied that the profession of sex trade is a slur on the dignity of women. Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution be therefore understood in its correct perspective as indicated above.

J (GYAN SUDHA MISRA) New Delhi, July 26, 2012
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A moment of triumph for women

Posted in CRIME AGAINST WOMEN, FUNDAMENTAL RIGHTS, GENDER, VIOLENCE AGAINST WOMEN, WOMEN EMPOWERMENT by NNLRJ INDIA on January 26, 2013

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By Kalpana Kannabiran Published  in THE HINDU

The comprehensive reforms suggested by Justice Verma and his colleagues will protect the right to dignity, autonomy and freedom of victims of sexual assault and rape

Starting with Tarabai Shinde’s spirited defence of the honour of her sister countrywomen in 1882, women’s movements in India have been marked by persistent and protracted struggles. But despite this rich and varied history, we have in recent weeks found ourselves shocked at the decimation of decades of struggle.

A transformation

At a time when despair and anger at the futility of hundreds of thousands of women’s lifetimes spent in imagining a world that is safe drive us yet again to the streets; at a time when our daughters get assaulted in the most brutal ways and our sons learn that unimaginable brutality is the only way of becoming men; at a time when we wonder if all that intellectual and political work of crafting frameworks to understand women’s subjugation and loss of liberty through sexual terrorism has remained imprisoned within the covers of books in “women’s studies” libraries; at a time like this, what does it mean to suddenly find that all is not lost and to discover on a winter afternoon that our words and work have cascaded out of our small radical spaces and transformed constitutional common sense?

The Report of the Committee on Amendments to Criminal Law headed by Justice J.S. Verma is our moment of triumph — the triumph of women’s movements in this country. As with all triumphs, there are always some unrealised possibilities, but these do not detract from the fact of the victory.

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. Perhaps more importantly, it also draws out the political framework within which non-discrimination based on sex must be based and focuses on due diligence by the state in order to achieve this as part of its constitutional obligation, with the Preamble interpreted as inherently speaking to justice for women in every clause.

If capabilities are crucial in order that people realise their full potential, this will be an unattainable goal for women till such time as the state is held accountable for demonstrating a commitment to this goal. Performance audits of all institutions of governance and law and order are seen as an urgent need in this direction.

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” (p.55), the committee, in a reiteration of the Naaz Foundation judgment, 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.

Reviewing leading cases and echoing the critique of Indian women’s groups and feminist legal scholars — whether in the case of Mathura or even the use of the shame-honour paradigm that has trapped victim-survivors in rape trials and in khap panchayats, the committee observes: “…women have been looped into a vicious cycle of shame and honour as a consequence of which they have been attended with an inherent disability to report crimes of sexual offences against them.”

In terms of the definition of rape, the committee recommends retaining a redefined offence of “rape” within a larger section on “sexual assault” in order to retain the focus on women’s right to integrity, agency and bodily integrity. Rape is redefined as including all forms of non-consensual penetration of sexual nature (p.111). The offence of sexual assault would include all forms of non-consensual, non-penetrative touching of sexual nature. Tracing the history of the marital rape exception in the common law of coverture in England and Wales in the 1700s, the committee unequivocally recommends the removal of the marital rape exception as vital to the recognition of women’s right to autonomy and physical integrity irrespective of marriage or other intimate relationship. Marriage, by this argument, cannot be a valid defence, it is not relevant to the matter of consent and it cannot be a mitigating factor in sentencing in cases of rape. On the other hand, the committee recommended that the age of consent in consensual sex be kept at 16, and other legislation be suitably amended in this regard.

Verma ReportVoices from conflict zones

Rights advocates in Kashmir, the States of the North-East, Chhattisgarh, Gujarat and other areas that have witnessed protracted conflict and communal violence 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. This has been taken on board with the committee recommending that such forms of sexual assault deserve to be treated as aggravated sexual assault in law (p. 220). 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.

Clearly a sensitive and committed police force is indispensable to the interests of justice. But how should this come about? There have been commissions that have recommended reforms, cases that have been fought and won, but impunity reigns supreme. If all the other recommendations of the Committee are carried through, will the government give even a nominal commitment that the chapter on police reforms will be read, leave alone acted on?

The Delhi case

The recent gang rape and death of a young student in Delhi has raised the discussion on the question of sentencing and punishment yet again. The first set of questions had to do with the nature and quantum of punishment. Treading this issue with care, the committee enhances the minimum sentence 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 second question had to do with the reduction of age in respect of juveniles. Despite the involvement of a juvenile in this incident, women’s groups and child rights groups were united in their view that the age must not be lowered, that the solution did not lie in locking them up young. Given the low rates of recidivism, the committee does not recommend the lowering of the age, recommending instead, comprehensive institutional reform in children’s institutions.

The report contains comprehensive recommendations on amendments in existing criminal law, which cannot be detailed here except in spirit. The significance of the report lies, not so much in its immediate translation into law or its transformation of governance (although these are the most desirable and urgent), but in its pedagogic potential — as providing a new basis for the teaching and learning of the Constitution and criminal law and the centrality of gender to legal pedagogy.

(Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad. Email: kalpana.kannabiran@gmail.com)

By Kalpana Kannabiran Published  in THE HINDU

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Making laws work for rape victims

Posted in CRIME AGAINST WOMEN, GENDER, SEXUAL OFFENCES by NNLRJ INDIA on January 23, 2013

IMG_0593BY JONATHAN DERBY PUBLISHED IN THE HINDU

Conviction rates improve when teams of lawyers and social workers supervise progress of individual cases in a spirit of cooperation with officials

Today, the Justice Verma Committee is scheduled to release recommendations on ways to strengthen government’s response to crimes of aggravated sexual assault. There has been a lot of noise in the media calling for harsher punishment for rapists. The demands have only grown louder as details from the barbaric events of the December 16 gang rape and murder in Delhi come to light. While cries for chemical castration and even death for rapists stem from the brutality of the crime, they do not address the root problem: the criminal justice system does not function the way it is meant to function. In fact, the public’s frustration points to a decay of trust in the government’s ability to deliver justice and protect its people.

There have also been quieter, more reasonable voices in the media calling for a stronger, more sensitive, criminal justice system: one that delivers justice swiftly, gives rightful convictions and treats victims with dignity and compassion. While the substantive and procedural rape law is far from perfect, society’s frustration is not based on the inadequacy of the law, but on effective implementation of the law.

The law and reality

In fact, statutory law and Supreme Court and High Court judgments have established a solid legal framework that protects rape victims and requires government authorities to follow victim-friendly procedures. Protections under this legal framework include requiring lawyers and social workers for victims at the police station and for police to take statements in a setting that makes the victim comfortable. At government hospitals, there should be special rooms to examine rape victims, equipped with medical kits that doctors should use to examine the victim and collect crucial evidence. When the victim testifies at trial — vital evidence needed for getting a conviction — it should take place in the judge’s chambers rather than in open court, and whenever possible, before a woman judge. For children, there are even greater protections and accommodations, many of which have been codified in the recently enacted Protection of Children from Sexual Offences Act, 2012. Unfortunately, there is a gap between this legal framework and practice on the ground.

Collaboration works

Of course, the success of any system comes down to the people who work within the system. The great majority of publicity about people who work within the criminal justice system, especially law enforcement officials, has been negative. Maybe the negative publicity is justified and brings needed attention to problems. But constant antagonism is counterproductive; it drowns out the good work countless police officials do every day. Good people dedicated to public service who work long hours for low pay without adequate training and resources. Yes, there are government officials — police officials, medical practitioners, public prosecutors and judges — who must change their attitudes and do their jobs better. At the same time, it is only human nature that if someone consistently hears negative criticism, they tend to become discouraged and desensitised to the feedback. Either they will sink to the level people expect of them or they will stubbornly refuse to raise their professional standards. There is a better approach that builds positive energy: civil society collaborating with government to strengthen the criminal justice system.

Long-term strategies should focus on changing the culture of the criminal justice system so that it is victim friendly and implements the law. But improving performance immediately merely requires government authorities to follow the law already in place. A mechanism needs to hold government authorities accountable when they do not implement the law, regardless of the reason: whether because they are uninformed, do not have a clear understanding of the law, or it is inconvenient to follow.

An effective way to hold government authorities accountable is to have a team comprising a lawyer and social worker, trained to handle cases of sexual violence, advocate for the victim’s interests at the police station till judgment. The team would work on the ground, advising on the law, supporting the victim and monitoring progress of cases. At first they will likely need to confront officials when the law is not implemented. But their broader approach would be one of a spirit of collaboration and cooperation.

In Delhi

In Delhi, the Rape Crisis Cell under the Delhi Commission for Women partners with non-governmental organisations to provide legal and social support to rape victims. The Delhi Commission for Women’s lawyers start providing oversight only at the trial stage. Still, the National Crime Records Bureau reports that in 2011, Delhi NCT had a 41.5 per cent conviction rate in rape cases compared to the 26.4 per cent national conviction rate. In both examples, conviction rates are higher This programme is a good model that provides advocates who represent the victim’s interests, while collaborating with government authorities to strengthen the criminal justice system.

When government authorities collaborate with civil society groups, the criminal justice system functions more effectively: government authorities are more likely to follow victim-friendly procedures, investigations and trials will move more swiftly and conviction rates will rise. When this happens, potential perpetrators will think twice before they aggressively harass women. Women and their families will have greater confidence to report sexual abuse; and society’s faith will steadily grow in the system meant to provide security and protect them.

(Jonathan Derby is a U.S. licensed attorney who has extensive experience in human rights at grass-roots level in India.)

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Justice Verma panel for umbrella law on sexual assault

Posted in CRIME AGAINST WOMEN, CRIMINAL JUSTICE SYSTEM, GENDER, SEXUAL OFFENCES by NNLRJ INDIA on January 23, 2013

VERMA PANELAditi Tandon in The Tribune New Delhi, January 22

Set up to review current laws on aggravated sexual assault following the brutal gang rape of a young girl in Delhi on December 16 last year, the Justice JS Verma Commission will submit its report to the government tomorrow. It will also make the report public.

The Home Ministry, while notifying the commission on December 24, 2012, had given it a month for the job. The committee has taken less than a month to scan hundreds of representations on the issue agitating the country. Before finalising the report, the committee comprising former Chief Justice of India JS Verma, Justice Leila Seth (former Chief Justice of Himachal HC) and Gopal Subramanian (former Solicitor General) met over 100 women’s representatives from across India.

Importantly, the commission expanded its area beyond the terms of reference the government set for it. The Home Ministry notification had asked it to “review the present laws to provide speedier justice and enhanced punishment in cases of aggravated sexual assault.” But the committee has looked at the context of sexual assault, including issues of human trafficking, missing children and beggary as factors behind crimes.

It is set to recommend a comprehensive criminal law amendment Bill that defines sexual assault to address penetrative assault as well as non-penetrative sexual offences such as molestation, stalking and stripping. Marital rape is also likely to be recommended for inclusion in the sexual assault law for the first time. Currently, marital rape is legal.

The panel is also expected to seek repeal of Sections 354 and 509 of the IPC which contain archaic notions of outraging the modesty of women and recommend their replacement with a clear gradation of non-penetrative sexual offences along with punishments depending on the violation of women’s bodily integrity.

For the first time, there is a possibility of security forces being covered as a separate category in the section of sexual assault law dealing with aggravated sexual assault. Section 376 (2) of the Criminal Amendment Bill 2012 which the government introduced in Lok Sabha last December doesn’t cover security or armed forces as a category under aggravated sexual assault and mentions only police, public servants, remand home in charges and hospital managements. The Verma panel will likely seek inclusion of armed forces and recommend waivers of prosecution sanction if they are accused of this offence.

On punishment, the committee’s view remains to be seen considering majority petitions argued against death penalty and chemical castration and sought quick justice and imprisonment ranging from 10 years to the rest of life for the accused depending on the crime committed.

Women’s groups unanimously opposed lowering the juvenile age from 18 years at present and called for accountability of states and Centre on care, protection and rehabilitation of juvenile delinquents. They, however, demanded lowering the age of consent for sexual engagement from the current 18 to 16 years.

In another expected recommendation, the commission will set to ask the government to make sexual assault a gender-specific crime insofar as the perpetrator is concerned. The current government Bill defines sexual assault as a gender neutral crime (meaning women can also rape and men can be raped).

“We argued that sexual assault be made gender-specific insofar as perpetrators (males) are concerned and gender neutral insofar as victims are concerned. Among victims, women, transgenders and other sexual minorities must be mentioned. The commission heard us favourably and examined linkages between government current economic policies and rising crimes against women,” said Vrinda Grover, top Supreme Court lawyer.

Sweeping measures

  • It will cover penetrative assault as well as non-penetrative sexual offences such as molestation, stalking and stripping
  • Marital rape is also likely to be recommended for inclusion in the sexual assault law for the first time. Currently, marital rape is legal
  • The panel is also likely to press for doing away with archaic terms like outraging the modesty of women and recommend their replacement with a clear gradation of non-penetrative sexual offences
  • For the first time, there is a possibility of security forces being covered as a separate category in the section of sexual assault law

 

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Blind to what, Your Honour?

Posted in COURTS, CRIME AGAINST WOMEN, FUNDAMENTAL RIGHTS, GENDER, HUMAN RIGHTS, JUDICIARY, JUSTICE by NNLRJ INDIA on December 31, 2012

JUSTICEINDIRA JAISINGH IN THE TIMES OF INDIA

Of all the promises made in the Constitution, the most important are the promises of the ‘right to life’, the ‘right to dignity’, the ‘right to personal liberty’ and the ‘right to bodily integrity and health’. However these promises are yet to be redeemed for women. Rape and other forms of sexual assault,domestic violence,dowry death and honour killings — the most brazen violation of these rights — are a real and daily danger for most women.

The cry that has been reverberating in the streets of the capital — and across the country — from a new and younger generation of citizens is: “We want justice”. It is addressed to us judges and lawyers whose primary responsibility is to protect the rights of the people. The women of this country are no longer willing to tolerate the unconscionable delays in the delivery of justice. It is the sacred duty of judges to prevent violence against women in the home; at the work place and on the streets and hold the perpetrators accountable. What is it that stops courts from securing justice for women? Why has the law not been able to convict the accused when it comes to crime against women? The situation is best summed up by a famous Orwellian quote—’ to see what is in front of one’s nose needs a constant struggle’.

To see the lack of judicial will to get justice for victims of gender-based violence, as stemming from a deeply entrenched prejudice and misogyny in the justice delivery system, including the courts and their judges, is an exercise demanding a constant struggle. It is so much in front of our noses that we, women and men included, legitimise the presence of sexism in our lives and carry it to the corridors of the court and into the courtrooms and into judgements.

This is a part of the Indian reality; from the private sphere of the ‘home’ to the public space like places of work; from the open streets to the corridors of courts playing out in the theatres of justice. Today, the belief in equality is not sincerely held at all. On the contrary, the social system, including the judicial system, is built on a hierarchy along caste and gender lines.

It is no secret that violence against women stems from the deeply unequal relationship between the two sexes in private and public life. It is also no secret that this misogyny is deeply rooted in our society, including within the system of administration of justicefrom investigation to trial, to judgment. A high court judge in Orissa in his judgement once famously held, that it was not possible for a man, acting alone, to rape a woman in good health. There you have it, the distinction between “legitimate” rape and ” illegitimate” rape (to borrow from the infamous comment by Todd Akin) coming from a high court judge.

This is the same thing you hear so often from judges that “women are misusing the law.” They decide what is the legitimate use of the law for women, based on a deeply sexist view of how a woman should behave; what she should desire and how much violence she should tolerate. A casual glance at the kinds of questions a woman is asked in any prosecution of gender- based violence or a reading of judgments of the court will reaffirm this view. On one occasion when a woman lawyer asked for an adjournment, a district judge said, ” I know how you women lawyers make it”. He was rewarded by being appointed to the high court.

Sexual violence against women is unique as it begins in the home and moves out to public places. The problem begins with the assumed consent that women give to sexual intercourse within a marriage. Rape by a man of his wife without her consent is not an offence. Since this is a settled norm, it matters little whether forcible sexual intercourse is with the wife or a stranger on the street. With this accepted culture of rape within marriage standing tall, we have little hope of changing the culture of violence against women anywhere. The assumed consent of a woman to sexual intercourse becomes ingrained in the psyche of a man — as a husband, a son, a brother and this psyche continues into public spaces. Thus it is imperative to recognise that non-consensual sexual intercourse is unacceptable regardless of whether it is with a wife or a stranger, if we want sexual violence against women to stop. A legal culture that creates ‘legitimate and ‘illegitimate’ violence needs to change.

It is heartening to see for the first time, a large number of men on the streets protesting against sexual abuse of women. It is a new generation which brings hope that the tendency for violence against women is about to end as men of future generations will not tolerate such violence.

Lack of adequate number of judges or excessive workload is no longer an acceptable excuse to the women of this country for delaying judicial decisions. They know that it is the abuse of the process of law by vested interests and the utter indifference to women who have been sexually abused, that cause delays, not lack of infrastructure. An approximately 40% increase in the number of judges between 2005 and 2012, has not produced a corresponding decline in the pendency of cases. Justice does not reside in the brick and mortar courtrooms but in the heart and soul of judges and lawyers who represent victims of injustice. Any judge worth the name knows how to prevent delays and an abuse of the process of law by the rich and the famous.

The first duty of judges is to give cases of sexual assault priority and deal with them expeditiously with zero tolerance for delay. The demand for fast track courts is a metaphor for the intolerance of a dysfunctional legal system. While dedicated courts may go some way in dealing with the issue of delays, they will have to be accompanied by support structures, which enable a fair investigation and prosecution.

Women are conspicuous by their absence from the courts as lawyers and as judges. On the other hand, our law schools have at least 50% women students. Yet due to the patriarchy embedded in the judiciary and the legal system, the number of women lawyers and judges is negligible. Even those who manage to penetrate the highly patriarchal framework are discriminated against in terms of appointments, designation as seniors and promotions. Women are constantly under the microscope being pushed to prove themselves while male lawyers need pass no test of competence. The old boys network effectively keeps women out of the span of all zones of influence.

All talk of increasing the penalty for rapists to death is hollow. As the law stands today, a m a n fo u n d guilty of rape can be given a life sentence, And yet in my entire career as a lawyer spanning over 40 years, I have yet to see a single case in which a life sentence has been meted out to a rapist, what then to talk of the death penalty! This calls for urgent action plan by the Chief Justice of India and the chief justices of all high courts to raise as fast as possible the number of women judges in our courts. A few years ago, a woman who I represented in a classic case of sexual harassment, once asked me why her appeal was not being listed before a woman judge in the Supreme Court. My answer was simple, “because there is no woman judge in the Supreme Court.” At this she expressed her amazement and asked, if the Supreme Court could mandate that the chairperson of a sexual harassment committee which was to be set up by employers must be a woman, how come that law does not apply to the court itself ? I had no answer.

A critical mass of women in the judicial system and in the prosecution will inspire confidence in the system for women. The world over, this is known to happen. Women today have no stake in the judicial system and this is reflected in the cry “We want justice”.

A demand for accountability of institutions of justice delivery, the police and the courts must accompany the demand for appropriate laws. Accountability of the police must start with a complaints procedure within the police service itself where a complaint can be lodged for non-performance of duties. A clear command responsibility must be articulated within this mechanism so that in case of non-performance of duties by a junior, the senior officer is held liable. When a pattern of non-performance emerges, leading to a permanent sense of insecurity in which women live, the accountability must be that of the head of the police, and of the political establishment. Confidence in the administration can only be restored by measurable action against people in positions of power.

The judiciary has long been a selfregulating, self- appointing institution. We need a transparent method of appointment of judges where the antecedents of the proposed appointee can be publicly scrutinised. Accountability of the legal system must carry with it, accountability of judges. We need an official mechanism for monitoring the performance of the judiciary to check how content of their judgements meet the constitutional goals of equality. We need independent special rapporteurs drawn from civil society to report directly to Parliament on the performance of the legal system, the judicial system and the police system and violence against women.

It is time for standards to be put in place as to how judges must behave with women lawyers and litigants. The language of the law must be sanitized of all its male chauvinist content. No judge, let alone a Supreme Court judge must ever be allowed to use sexist language in judgements or during the course of arguments in court. Accountability starts at the top with the Supreme Court, what a judge of the Supreme Court thinks and says today, will be said and done by the 17,000 subordinate court judges who deliver justice under the supervision of the high courts.

We need a protocol on how judges ought to behave with women in courts and how they should address women’s issues in their judgements. Gender sensitive language must reflect in judgements dealing with women. This is not a matter of form but of substance. Changing culture and mindsets often requires language to change and rules and regulations, which reflect the change and do not permit a fall from standards. This is the time when the Chief Justice of India must rise to the occasion and speak to the nation and inform us what will be done to restore the confidence of the people in the justice system. Besides his role as a judge, he has a role as the head of the judiciary responsible for the administration of the justice.

The single most important statement we would like to hear from him, is that discrimination against women by judges will not be tolerated; the judiciary will have to exhibit and demonstrate zero tolerance of violence against women in the home, and on the streets.

The goal of law is to sustain life not support its destruction. This is what the 23-year-old was trying to tell us, before she died. “I want to live,” she said, not die of shame. She changed the way society looks at rape — from blaming the victim to focusing on the rapist. All law reform must move in that direction, asking how we can build a new life-sustaining legal culture, a more equal culture, with justice for all. That is the question we must address — with or — without a special session of Parliament.

The writer is Additional Solicitor General of India

INDIRA JAISINGH IN THE TIMES OF INDIA

Review of Rape Law

Posted in CRIME AGAINST WOMEN, RIGHT TO LIFE, VIOLENCE AGAINST WOMEN by NNLRJ INDIA on July 21, 2012
Dignity is her birthright

Dignity is her birthright

NATIONAL LAW RESEARCH DESK

The Union Cabinet today approved the proposal for introduction of the Criminal Law (Amendment ) Bill, 2012 in the Parliament.

The Law Commission of India in its 172nd Report on `Review of Rape Laws` as well the National Commission for Women have recommended for stringent punishment for the offence of rape. The High Powered Committee (HPC) constituted under the Chairmanship of Union Home Secretary examined the recommendations of Law Commission, NCW and suggestions various quarters on the subject submitted its Report along with the draft Criminal Law (Amendment) Bill, 2011 and recommended to the Government for its enactment. The draft was further examined in consultation with the Ministry of Women and Child Development and the Ministry of Law & Justice and the draft Criminal Law (Amendment) Bill, 2012 was prepared.

The highlights of the Bill include substituting sections 375, 376, 376A and 376B by replacing the existing sections 375, 376, 376A, 376B, 376C and 376D of the Indian Penal Code,1860, replacing the word `rape’ wherever it occurs by the words `sexual assault`, to make the offence of sexual assault gender neutral, and also widening the scope of the offence sexual assault.

The punishment for sexual assault will be for a minimum of seven years which may extend to imprisonment for life and also fine for aggravated sexual assault, i.e., by a police officer within his jurisdiction or a public servant / manager or person talking advantage of his position of authority etc. The punishment will be rigorous imprisonment which shall not be less than ten years which may extend to life imprisonment and also fine.

The age of consent has been raised from 16 years to 18 years in sexual assault. However, it is proposed that the sexual intercourse by a man with own wife being under sixteen years of age is not sexual assault. Provision for enhancement of punishment under sections 354 and 509 of IPC and insertion of sections 326A and 326B in the IPC for making acid attack a specific offence have been made.

RAPE LAWS RECOMMENDATION NCW

172LAW COMMISSION REPORT ON REVIEW OF RAPE LAW

Dignity is her birthright

Posted in CHILD ABUSE, COMPENSATION, CRIME AGAINST WOMEN, VIOLENCE AGAINST WOMEN by NNLRJ INDIA on March 24, 2012
Dignity is her birthright

Dignity is her birthright

JUSTICE PRABHA SRIDEVAN IN THE HINDU

The state should not forget the human rights perspective while dealing with a victim of sexual violence. It should not doubly, trebly victimise her.

Women do not walk in a state of perpetual consent. But women do seem to labour under a delusion that it is safe for them to walk in public spaces, to travel in buses and trains. It obviously is not. They can be raped. It is difficult to understand rape. Rape is not about chastity or virginity. Long before these concepts were constructed, long before the institution of marriage was founded, a man raped a woman whenever he broke her sexual autonomy without her saying “yes.” It is a violation of her right to equality and her right to live with dignity which “We” promised ourselves when we gave to ourselves the Constitution. Surely women are included in the “We” of the Preamble, aren’t they?

Rape is the destruction of dignity through invasion of another person’s body without her consent. I use the word “her”, though the victim of this violence can be a child, a woman or a man. The anatomy of rape is common to all. But I will continue to use the pronoun “her”, since the majority of victims of sexual violence are female. Rape is a deliberate negation of the right over one’s body.

This right is born with us. It does not require a development of maturity or the consciousness of one’s body to acquire the right. So a girl child who is raped when she is 11 months old does not suffer less, nor is the crime less dark and bloody because the child does not know that she has the right not to be invaded. The consent that is required to make the sexual act not a rape must be understood as an active assent to the act. The consent cannot be presumed merely because a woman does not say “no”. She might not have said “no” because she was paralysed by fear, manacled by coercion or pounded by force. She might not have said no, because she was mentally damaged, incapable of making a decision in this regard; she might have been an infant, or disabled from moving because of physical incapacity. Yet it is rape. Only it is blacker if there is such a colour. It is the invasion of a woman who cannot say no.

Act of subjugation

It strips the victim of her dignity, it is intended to. It is an exertion of power, an act of subjugation, a statement that divests the victim of her right of control over herself and renders her an object. It is meant to objectify her. The dilution of the horror, by using words like “he lost control” is unjustified and is an insult to a woman. The violator does not lose control, but exerts control through the act of unspeakable violence.

In the Prosecutor v. Jean Paul Akayesu, the International Tribunal held that rape is a form of aggression, the central elements of which cannot be captured in a mechanical description of objects and body parts. It noted “the cultural sensitivities involved in public discussion of intimate matters and recalled the painful reluctance and inability of witnesses to disclose graphic anatomical details of the sexual violence they endured.” It was intended to reconstitute the law’s perception of women’s experience of sexual violence.

In a sensitisation programme for judicial officers, an exercise was given which would give a clue to the rape complainant’s feelings in court. All judicial officers were asked to close their eyes and imagine the experience of their first union with their loved one. Then they were asked to narrate it to the colleague sitting on their right. They were horrified at this intrusion of their privacy. Then the trainers asked them: “If you cannot narrate a pleasant sexual experience to a friend without inhibition, how do you expect a frightened woman in a strange court hall to narrate fluently, in the presence of a battery of hostile lawyers, her devastating experience of sexual violence?” The officers had no answer.

But what is the reality? She is broken by having to repeat the incidence of rape again and again. “Madam, what was he wearing at the time of the occurrence? Did his tee shirt have a collar or no?” Oh yes, she can surely recall in vivid freeze-frames of “the occurrence.” And who will save her if she falters just once in the witness box? “See your Honour, the accused was wearing a blue striped chaddy, but she says red … totally unreliable, Your Honour.” The Supreme Court has given strict guidelines on how her evidence should be weighed, and how her complaint should be assessed.

But a poor child who does not know an Ambassador from a Fiat was disbelieved by the trial court, until the Supreme Court came down with all its majesty to the rescue of the child and noted that the prosecutrix was a village girl studying in class 10 and her ignorance of the car brand, was irrelevant (State of Punjab v Gurmit Singh 1996 (2) SCC 384.)

‘Distinct concepts’

In the Amnesty International publication, “Rape and sexual violence — human rights law and standards in international courts,” we read how the human rights perspective must never be forgotten while dealing with sexual violence.

Sexual autonomy cannot be understood outside the umbrella of human rights. Its violation must be criminalised. The report says, “Unfortunately, however, sexual autonomy is frequently conflated with narrow views of ‘consent’ under domestic criminal law which do not capture the reality of how acts of rape and sexual violence are committed … Sexual autonomy and consent are two distinct concepts. The concept of ‘consent’ as used in domestic criminal law imports a notion of individual choice, typically without a consideration of the reality of abuse of power (whether evidenced through physical force, or other forms of coercion) and other factual conditions that may prevail before, during and perhaps after the sexual acts in question. A consideration of whether an individual was able to exercise sexual autonomy, by contrast, takes into account the overall dynamic and environment surrounding those sexual acts and how these had an impact on the victim’s ability to make a genuine choice.”

A woman who is raped goes through a variety of feelings like denial, self-hate, grief, degradation, suicidal impulse and more. She falters in her narration, oh yes, she does, but not because she is a liar, but because the act of rape not only inflicts physical harm but also incalculable emotional and psychological harm. Chemical changes take place in her brain because of the trauma. She may go into a fantasy that someone will rescue her from this nightmare. Post-rape, she lives in a smoke world of truth and untruth, denial and depression, nothing is the same any more. She is screaming on the inside “please, please put the clock back.” This is just a short, incomplete statement of what is happening on the inside.

What is happening on the outside? The whole family is devastated, it even looks at her as if she somehow brought it on herself. “Why did you go there?,” “I told you not to wear that” and so on. So the woman wonders if the first enemy is the family. It is not in every case that the woman actually lodges a complaint, because she and her family know what will follow the complaint is worse. It is hell. It is not necessary to give the details of the experience on the way to the police station and inside the precincts thereof. The world looks at her as if she carries a stain on her all the time. She may never be allowed to forget the occurrence. So will a woman lie that she was raped?

The Amnesty International report reminds us that women and girls are not “likely to make false accusations of rape and sexual violence. This is a particularly irrational stereotype as women and girl complainants usually have very little to gain and everything to lose by making allegations of rape, there is rarely an incentive for them to lie; many complainants pursue their search for truth and justice at enormous cost to themselves, in terms of stigma and rejection by their families and communities.”

In this harsh reality, society and especially the state and courts must remember that they shall not doubly and trebly victimise her, nor raise a cacophony of distrust. It will only silence the voices against this horror.

(The writer is a former judge of the Madras High Court and Chairman of the Intellectual Property Appellate Board.)

SOURCE:Dignity is her birthright

National Legal Research Desk on Violence Against Women and Children

Supreme Court of India

NATIONAL LEGAL RESEARCH DESK

The Constitution of India provides for special treatment of women, guarantees equality and prohibits discrimination. The government of India has been strengthening various laws focused on women and children. This has been more visible since the Beijing CEDAW Conference. The recent years have been witness to some landmark interpretations and directives related to Violence against Women.  Despite the constitutional mandate of equal legal status for men and women, the same is yet to be realized. The dejure laws have not been translated into defacto situation for various reasons such as illiteracy, social practices, prejudices, cultural norms based on patriarchal values, poor representation of women in policy-making, poverty, regional disparity in development, lack of access and opportunity to information and resources, etc. The ground situation more or less remains the same.

Most of the laws come with various institutional machinery, partnership between various stakeholders and active role of NGOs.  These institutions need to be in existence in order for the law to be effective. Also the policies and programmes made at the top takes a long time to percolate to the bottom and there is an urgent need of sharing information and resoursces.

 The awareness on laws and access to justice remains dismal. At the district and the state level sensitivity on women rights among judicial officers, administration and the police is very low. This leads to a situation where the implementation of the law becomes difficult.  Recently India has increased its budgetary support for the implementation of various laws on violence against women and it becomes increasingly more important for the organization like Shakti Vahini to work on governance specially related to women and children issuesThe National Legal Research Desk (NLRD) has been instituted to strengthen the implementation of the laws related to Women and Children in India. NLRD focuses on documenting the recent changes in the law, collect and compile the Recent Landmark Judgments of the Supreme Courts of India & the High Courts and ensure wide scale dissemination of the same through the government and the non government machinery. The NLRD will work with Law Enforcement Agencies, Police Academies, Judicial Agencies, Government Agencies, Statutory Agencies, NGOs, Civil Society and Mass Media on promoting Access to Justice for Women and Children. The NLRD website is a knowledge Hub for compilation of all Laws, Judgements and Resource materials on Violence against Women and Children in India. In the first phase (2012) it will focus on the laws related to Human Trafficking, Domestic Violence, Juvenile Justice, Rape Laws, PCPNDT Act , Honour Crimes and Victim Compensation.

NATIONAL LEGAL RESEARCH DESK

Mere consent to conjugal rights does not mean consent to give birth to a child for her husband

Posted in CRIME AGAINST WOMEN, VIOLENCE AGAINST WOMEN, WOMEN EMPOWERMENT by NNLRJ INDIA on February 12, 2012
Français : Palais de Justice de Chandigarh, Inde.

Image via Wikipedia

THE TRIBUNE Chandigarh, February 11

In a first, the Punjab and Haryana High Court has ruled that a husband cannot compel his wife to conceive and give birth to his child. Making it clear that relationships that know no limits too have boundaries, the high court has asserted intimacy is one thing, giving birth to a child another. “Mere consent to conjugal rights does not mean consent to give birth to a child for her husband,” Justice Jitendra Chauhan of the High Court has asserted. The judgment, pregnant with significance, also makes it amply clear that “to have and to hold, for better, for worse, for richer, for poorer, in sickness or in health” does not give a man the right to prevent his wife from going in for an abortion.

The ruling came on revision petitions filed by Chandigarh-based gynaecologist Dr Mangla Dogra and others petitioners. The controversy in the case hovered around the decision of a wife to go in for medical termination of pregnancy without her husband’s consent. Married in April 1994, the couple and their son were initially staying in Panipat. Due to “hostilities and strained relations”, the wife started staying with her parents, along with her son, at Chandigarh. The wife conceived after she agreed to accompany her husband to Panipat during the pendency of her application for maintenance. She then underwent an MTP carried out by Dr Mangla Dogra, who was assisted by Dr Sukhbir Grewal as anesthetist.

The husband, subsequently, filed a civil suit for the recovery of Rs 30 lakh towards damages for mental pain, agony and harassment against his wife, her brother and parents and Dr Dogra and Dr Grewal for getting the pregnancy terminated illegally. Taking up the plea, a Civil Judge asserted: “There is a cause of action in favour of the plaintiff against the defendants (wife and others) at this stage”. Aggrieved by the orders, Dr Dogra and other petitioners preferred the revisions. Justice Chauhan asserted: “The wife knew her conjugal duties towards her husband. Consequently, if the wife has consented to matrimonial sex and created sexual relations with her own husband, it does not mean that she has consented to conceive a child. It is the free will of the wife to give birth to a child or not…

“The wife is the best judge and is to see whether she wants to continue the pregnancy or to get it aborted… Keeping in view the legal position, it is held that no express or implied consent of the husband is required for getting the pregnancy terminated… “A woman is not a machine in which raw material is put and a finished product comes out. She should be mentally prepared to conceive, continue the same and give birth to a child. The unwanted pregnancy would naturally affect the mental health of the pregnant woman…” Imposing costs of Rs 50,000 on the husband, Justice Chauhan concluded: “It is held that the act of the medical practitioners Dr Dogra and Dr Grewal was legal and justified.”

http://www.tribuneindia.com/2012/20120212/main7.htm

Mere consent to conjugal rights does not mean consent to give birth to a child for her husband

Rape & Remedy

Rape - A henious Crime

Rape - A henious Crime

VANDANA SHUKLA IN THE TRIBUNE CHANDIGARH

The rhetoric on remedies of rape moves in circles – from capital punishment for rape to financial compensation to the victims to out of court ‘settlements’ to getting the victim married with the culprit. The woman’s need for dignity of course takes the back seat.

Despite an uninterrupted discourse on the subject over the past several decades, governments and society are yet to evolve a cast-iron system to deal with the crime and the criminals.

From the year (1971) the National Crime Record Bureau (NCRB) began collecting data on rape cases, it has shown an eight-fold increase. In 2008 over 21 thousand complaints were recorded in the country with various agencies conceding that over 80 per cent of the cases never get reported. Incest has shown a 30 per cent increase— these are disturbing social trends, which need to be researched and addressed. This stands in marked contrast to the other serious and violent crimes like murder, robbery, dacoity, kidnapping and rioting.

The NCRB has also concluded that only one in 69 rape cases get reported and only 20 per cent of the reported cases result in convictions.

Cash compensation ?

Compensation for rape is not a new idea. Courts have ordered for compensation to be paid under provisions contained in the statutes. Several state governments too have found it convenient to pay sums depending upon the extent of the public outrage and media exposure. But this is the first time the Ministry of Women and Child Welfare has launched a country-wide scheme and has offered to reimburse the state governments the cost they incur in its implementation.

But compensation — call it restorative justice or whatever —is tricky.

It is instructive to recall the experience with Prevention of Atrocities Act 1989 ( for SC and ST). Tribal and dalit victims of rape, were required to produce a certificate of their tribal/dalit status for receiving a compensation of Rs 25,000.

Getting the certificate in itself became a profit making proposition for brokers. Poverty also induced many to file false cases, thus defeating the well-meaning provision, points out Pratiksha Baxi from JNU.

The law also appears to assume unfortunately that standards of dignity are different for a woman from a well- off family and for a dalit woman. So, a dalit woman’s compensation money for rape can be shared by the rapist under the Act.

The compensation is paid if the victim belongs to either a Scheduled Caste or a Scheduled Tribe and the rapist does not. The law does not specify what happens if the woman is from a Scheduled Tribe and the man is from a Scheduled Caste or vice versa. Even before the Act was passed in 1989, since 1978 in UP women from SC and ST were paid compensation of Rs 5000 for rape.

The website of the Department of Social Justice and Empowerment, Govt of Gujarat, lays down that for outraging the modesty of a woman under section 3(1) (11) the Government pays a compensation of Rs 50,000, but in case the accused marries the rape victim, the ‘assistance’ ( here it is not termed as compensation) of Rs 50,000 is disbursed in the joint names of the couple.

It does not require great imagination to understand how these laws end up as bait for attracting more abuse for women. The website does not offer any data on how many women actually received the compensation or assistance!

Other obstacles

Compensation, obviously, can be paid only after the charge is established in court, which is a tall order in itself. Strangely, the scheme is sought to be justified by the need to help the victim financially so that she can fight it out in court. How this contradiction gets resolved , remains to be seen.

A study conducted by MARG in Uttar Pradesh throws up more questions.

Of the 33 registered victims or their family members the researchers spoke to, they found 13 victims were minors, 2 were six years old, one was between four and five years of age. One was 12 years old, others less than 14 years of age.

But in only four cases did the medical report confirm rape. Of the 13 minor victims, only one minor’s rape was confirmed. Two girls had the noting ‘no opinion’ and of the rest there was no medical record with the police. Yet, the compensation was ‘liberally’ sanctioned.

Although the police had no ‘medical examination report’ in their record, compensation was still sanctioned in as many as 28 cases, including nine in which there was no finding of rape. In one case the rapist and victim belonged to the same caste, hence the case was withdrawn!

The money, in case of minor victims, was received by the parents. Only two women spent Rs 2000 out of the received money to hire a lawyer.

Of the 13 minors, only four could attend school while most victims relocated to escape the stigma attached to rape. Their humiliation was compounded by the CM of U P, Mayawati , who had ordered the money to be delivered by the Director General of Police in person. He was also asked to take a helicopter and fly to various places for the purpose.

On the one hand rape cases are held in camera, on the other hand this display of ‘help’ discourages victims to report rape. The compensation, as and when paid, is often grabbed by the rest of the family, and makes the police indifferent and even more reluctant to pursue the cases. The attitude is, since the money has already been paid, why fuss over prosecution ?

Little research

In most countries, policies and laws are framed based on research based findings. But there are very few studies on the subject funded by the Government.

A few studies, mostly done by individuals who feel strongly about the issue, are however eye openers. Social activist Flavia Agnes’ study was based on observations drawn from her own legal practice and judgements involving rape cases; while Pratiksha Baxi’s ( Assistant Professor, Centre for Law and Governance, JNU, Delhi) study was based on what goes on inside the court rooms, where a 12- year- old is also asked sexually explicit questions a lawyer may hesitate putting to a 30- year-old.

Laws inadequate

Even after the much talked about Mathura case, which led to the amendment of Evidence Act in 1983, which allowed the woman’s word to be trusted for her non-consent, there has been no monitoring of judgements.

From 1860 to 2002, the colonial law based on the moral history of the woman was in application while looking at a rape victim, which meant that a woman’s sexual history would have a say on the writing of the verdict. Despite deletion of this clause, not much has changed in courtrooms.

A Google search for kanoon.com and rape cases will throw up several judgements, which are deeply patriarchal and explain why conviction rates are so abysmally low.

Doctors are surprised if the victim cooperates with them on examination (a victim is supposed to go stone-silent, weep and should have injury marks), policemen’s wives cannot complain of being raped by husbands ( because it is a husband’s right) and while the defence tries to prove that the victim is a consenting adult because anyone over 16 is thought to have given consent, judges worry about marital prospects of victims ( many rapists thus get lighter sentences when
they agree to marry their victims). Incest of course hardly ever gets reported because of the family’s insistence on silence.

Marry the rapist

Sakshi, an NGO, had released a study called ‘Gender and Judges’, in which it analysed the views of 119 judges from all over India, along with experiences of female lawyers, complainants and observations on court room trials.

Most judges found it impossible to believe that men could perpetrate the crime without any element of consent or provocation. ‘Judges were of the view that penetration of a woman is physically impossible without her ‘consent’ and that in any case women are ‘partially to blame for such abuse.’

Another ludicrous idea often encouraged by the judiciary is that of compromise. Whenever witnesses turn hostile, victims are advised to accept a compromise, which the court witnesses, but is unable and unwilling to act upon.

The court thus ‘restores’ her chastity in the public eye. Fortunately, the courts are prohibited from compounding a rape case.  Being a non-compoundable offence, compromise in rape cases has been confined to the bargains between community elders, victims’ kin, local authorities and the police, with judges looking the other way for the most part.

Power game

Women are often subjugated by men in power. In the Ruchika Girhotra molestation case, the protector, an IG, Haryana Police, S P Rathore became the tormentor. After 19 years, 40 adjournments, and more than 400 hearings, the court finally pronounced him guilty under Section 354 and gave him six months imprisonment.

In case of Anjana Mishra, it was the Advocate General of Orissa, Indrajit Roy, who attempted to rape her when she went to seek his help for getting custody of her children in 1998. Since she dared to report the case, she was gang-raped by three men, to teach her a ‘lesson.’ Roy was given anticipatory bail but was never arrested due to his political clout. Under public pressure when he finally resigned, his junior was made AG, putting Anjana in her place.

It is reminiscent of Bhanwri Devi’s case, a Sathin volunteer in Rajasthan, when she tried to stop a child marriage in 1992, she was gang raped by five men, including Ramkaran Gujjar, whose daughter’s marriage she had tried to stop. The male doctor at the primary health centre refused to conduct medical examination and at a Jaipur hospital the doctor certified only her age. Subjected to sustained humiliation, she was asked by the policemen to leave her lehenga as an evidence of rape. Bhanwri’s case inspired Visakha case, which brought about legislation against sexual exploitation of women at work place but Bhanwri could not get justice in a caste -ridden system.

Society must change first

Nandita Das

I enacted the role of a rape victim in three films; Bawandar, Pitah and Laal Salaam. So, I can claim to have some idea of what a woman goes through in a situation like gang- rape. While shooting the gang-rape scene for Bawandar, I saw some members of the crew nudging each other with suppressed and suggestive giggles, and I screamed. It was something I never do. But I felt violated. This was just an enactment, after all. I could immediately empathise with what an actual victim has to go through.

It is sad the way we treat this kind of abuse of women—with total disregard for the feelings of a woman. The society has to change—this is not something outside us, they come from within us. We need to shame the perpetrators, we need to talk more and more—in the open about these issues because, as we know, a rapist gets caught usually after a number of successful or unsuccessful attempts. What makes the rapist so daring is the silence of the women.

As far as monetary compensation is concerned, it finds justification in offering help to the victim to fight her case legally, which is often long-drawn. Otherwise it becomes like the flesh-trade. One must understand that the person is scarred for the rest of her life, simply because we have shrouded a crime under such weight of shame for so long that we do not want to deal with it.

What’s wrong if state takes responsibility?

Urvashi Butalia

There was a time when, after the Bhawnri Devi case, women’s groups demanded compensation, because Bhawnri was raped in the course of carrying out her duties as a government functionary, albeit an informal one (she was paid not as an employee but as a volunteer, something that enables the govt. to pay less than the minimum wage); therefore she was entitled to compensation. She was eventually given compensation but she did not use it, it created more problems for her— the community started saying rape was an excuse for taking money… so there is that element also. But if the state takes responsibility, then that can’t be altogether a bad thing

http://www.tribuneindia.com/2011/20110918/edit.htm#1

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