Law to deal with sexual offences against kids tabled in RS

The TRIBUNE

A government study says that 53 per cent of children below 18 years of age have undergone some or the other form of sexual victimisation. What is even more worrisome is that more than half the abusers are known to the children. The gravity of the situation today set the wheels rolling for a crucial Bill that will give the country, for the first time, a comprehensive law to deal with sexual offences against children by providing for stringent punishment of up to 10 years in jail, which may even extend to life imprisonment.Tabled in the Rajya Sabha by Women and Child Krishna Tirath, the Protection of Children from Sexual Offences Bill, 2011, will deal exclusively with sexual offences against children. It will protect children from sexual assault, sexual harassment and pornography and provide for establishment of special courts for trial of such offences and for matters connected therewith or incidental thereto.

“Sexual offences against children are not adequately addressed by extant laws. A large number of such offences are neither specifically provided for nor are they adequately penalised,” the statement of objects of the Bill said. The Bill will now be sent to the Standing Committee. The legal tool also provides for treating sexual assault as “aggravated offence” where it is committed by a person in position of trust or authority over a child, including a member of the security forces, police officer, public servant, management or staff of a children’s home, hospital or educational institution.

It will be treated as an aggravated offence where the child victim is below the age of 12 or suffers from a mental or physical disability or the sexual offence causes grievous hurt or injury to the child with a long-term adverse effect on the child’s mind and body. The punishment for such an offence would be imprisonment of up to seven years with fine. The punishment for penetrative sexual assault has been proposed to be at least five years in jail and a minimum fine of Rs 50,000. Sexual assault also includes fondling the child in an inappropriate way, which will invite a penalty of minimum three years in jail.

Section 7 of the Bill provides for “no punishment” if the consent for sexual act has been obtained with a person aged between 16 and 18 years.

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Oppressor’s case

T.K. RAJALAKSHMI IN THE FRONTLINE

Women’s organisations rise up against a petition that seeks an amendment to Section 498A of the Indian Penal Code.

A PETITION that alleges the misuse of Section 498A of the Indian Penal Code, which has been admitted by the Rajya Sabha Committee on Petitions, has become an object of concern among leading women’s organisations in the country. The petition claims that the law, dealing with dowry-related torture and acute domestic violence, is being misused. The existing law provides for a punishment of up to three years.

The petition, filed by one Dr Anupama Singh, ostensibly on behalf of many people, has demanded that the said section be made non-cognisable, bailable and compoundable. At present, the section reads: “Whoever, being the husband or the relative of the husband of a woman, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.” Currently, Section 498 is the only law that victims of dowry-related torture and domestic violence can have recourse to. The fact that dowry-related violence and dowry deaths have shown no abatement in the past two decades only indicates that the existing laws have not been implemented properly and have, therefore, failed to serve as deterrents.

It is ironical that while women’s organisations are demanding new laws to deal with the multifarious types of violence against women – the latest one is a law to deal with honour-related murders – and the government is responding positively, demands are being made to dilute existing ones. Besides, a Bill dealing with the protection of women from sexual harassment at the workplace has been introduced in the Lok Sabha. Also on the anvil is a draft Bill expanding the definition of sexual assault to include child abuse as well.

The fact that the Rajya Sabha committee has entertained a petition that seeks to amend Section 498A is perceived as a regressive step. Women’s groups, including the All India Democratic Women’s Association (AIDWA), have expressed their disappointment and submitted a memorandum to the committee highlighting their concern.

The petitioner has contended that Section 498A is being widely misused, fearlessly abused, and used with ulterior motives by unscrupulous people. The abuse, according to the petitioner, has caused a lot of harassment and torture, including atrocities inflicted on senior citizens, children, women (including pregnant women) and men. The petition claims that “there are several cases of dowry death wherein the supposedly ‘dead victims’ have come back alive, and several cases where the same women has [ sic] repeatedly alleged charges under this law in each of her [ sic] repeat marriages”.

The petition portrays complainant women as veritable Delilahs and Jezebels. It pleads that the law is being misused by women to “enable a get-rich-quick-scheme to extort large sums of money from innocent families”, “as a bargaining tool by those women who indulge in adultery”, to “alienate the husband from his parents and siblings so as to gain control over his finances and social behaviour including his lifestyle”, and to “conceal true facts about the mental health and educational level at the time of marriage, thereby adopting fraudulent means to forge the alliance”.

According to the petition, when their nefarious acts were exposed, the complainant women took recourse to this law, “deflecting the needle of crime on the innocent husband and his family… this law being an exception in Criminal Law presumes the accused as guilty until proven innocent; hence the woman’s word is taken as a gospel of truth. And there from begins the saga of unending trials, tribulations and destruction of an innocent man and his family.”

The law, it says, is being misused “to enable divorce so as to revive any pre-marital relationship that the wife has had [ sic] as she may have unwillingly given her consent for marriage to satisfy her parents”; to deny custody of children to the husband and his family; and to inflict “sufferings on husband and his family to settle scores and to wreak vengeance, thereby posing a grave threat to the very existence of a peaceful family unit in society”. The petition claims that thousands of innocent families have been implicated in false cases as a complaint is enough to arrest the husband, in-laws and anyone else. It contends that this has led to the “arrest of lakhs [ sic] of innocent citizens (thousands of families), with many committing suicide as they are unable to bear the indelible stigma on their honour and reputation”.

Quoting from the National Crime Records Bureau (NCRB), the petition says that some 501,020 people had been arrested under Section 498A of the IPC from 2003-06; 294,147 of them completed trial under the Section; and 58,842 were convicted. The petition also quotes a 2005 Supreme Court order where the misuse of the law was compared to “unleashing legal terrorism”; an undated World Health Organisation (WHO) report that has apparently said that Section 498A is one of the major reasons for growing “elder abuse in India”; a Law Commission Report (154th); the Malimath Committee Report (on Reforms of the Criminal Justice System); and the 111th report of the Parliamentary Standing Committee on Home Affairs, which have apparently acknowledged that there has been widespread misuse of Section 498A.

The Malimath Committee Report made general observations in the section dealing with offences against women. It said: “There is a general complaint that Section 498A of the IPC regarding cruelty by the husband or his relatives is subjected to gross misuse and many times operates against the interest of the wife herself. This offence is non-bailable and non-compoundable. Hence husband and other members of the family are arrested and can be behind the bars, which may result in husband losing his job. Even if the wife is willing to condone and forgive the lapse of the husband and live in matrimony, this provision comes in the way of spouses returning to the matrimonial home. This hardship can be avoided by making the offence bailable and compoundable.”

The Standing Committee report, while referring to the Law Commission’s and Malimath Committee’s reports, also recommended compounding of the offence under Section 498A . It noted: “Section 498A is intended to protect the woman from the cruelty of the husband or his relative. It has been widely reported that this provision has been misused and is also harsh as it is non-bailable and non-compoundable. It is desirable to provide a chance to the estranged spouses to come together and therefore it is proposed to make the offence under Section 498A IPC a compoundable one by inserting this Section in the Table under Sub Section (2) of Section 320 of CrPC [Criminal Procedure Code], wherein it can be compounded with permission of the court.”

On the basis of the general observations of the reports, the petitioner has demanded that the section be suitably amended so as to make (1) the offence under it bailable, non-cognisable and compoundable; (2) to make it punishable for whosoever misuses it; (3) to make the misuser liable to compensate the financial loss suffered by the falsely accused in the process; (4) to make the law gender-neutral in order to protect the interests of any man or woman and (5) to ensure time-bound trial, with a six-month limit.

As far as the number of cases are concerned, very few people would dispute the figures quoted in the NCRB reports. Roughly around 80,000 cases of torture are filed every year; every minute, a woman is killed for dowry; and very few of the complaints result in convictions. For this, the poor implementation of the law rather than the law itself is to blame.

Women’s groups feel that any dilution of the law will first leave victims of cruelty in the lurch. Making the offence non-cognisable would mean that the police will not respond to any complaint made by a woman and also not investigate the matter. This would also mean that every time a woman faces domestic violence, she will have to go to the court to file a complaint before a magistrate, a process that the majority of Indian women will not find easy. The offence being bailable implies that no person can be arrested at any stage by the police without a magistrate’s order. This would mean that a woman victim could well face more physical or mental abuse without any protection whatsoever from her aggressor.

Sloppy investigation

As far as sloppy investigation is concerned, AIDWA has argued that amendments made to the CrPC in 2009 included one with regard to the powers of the police. The amendment provides that in cases that entail a punishment of up to seven years of imprisonment the police should, before arresting a person, make proper investigation. It also states that no arrest shall be made if the accused cooperates with the police and does not tamper with evidence. The onus to investigate properly before conducting an arrest is, therefore, on the police.

AIDWA, which is the largest women’s organisation in the country and has fairly long experience in dealing with issues relating to women as victims, says that the ground realities are in complete contrast to what has been presented in the petition. First, it says, women approach the police or any organisation only after going through a lot of physical and mental battery. Even when they have dared to file a complaint, it is common to find gender biases, corruption and inefficiency on the part of the police.

Second, the police have been found to take an inordinately long time to register complaints, and complainants have often had to make repeated trips to the police station. Even the specialised Crimes Against Women Cells (in Delhi and Mumbai) have not proved helpful to women complainants. AIDWA’s experience is that women are forced to attend conciliation proceedings, and the cases are normally registered after the breakdown of these. Neither do the police make attempts to recover the streedhan or dowry in time. The nature of the investigation has, by and large, been shoddy in that the statements of the complainant and other members of her family/relatives are not recorded.

AIDWA general secretary Sudha Sundararaman and legal convener Kirti Singh have demanded that complaints under Section 498A be dealt with in the same way as complaints under provisions for other serious crimes. A perusal of various judgments under this section reveals that there was hardly an instance in which the accused were held guilty under Section 498A on its own. It was only in cases where the woman had finally died that the accused were punished under this section. False complaints, the organisation said, needed to be dealt with on a case-to-case basis.

Surveys

It is presumed that a law can be misused only if there is a fair degree of knowledge about it. The Associated Chambers of Commerce and Industry of India conducted a survey of 10,000 women, including working women, housewives and college girls in Delhi and the National Capital Region, and found that despite over 20 constitutional provisions for women, 70 per cent of those surveyed were not aware of their legal rights. Another questionnaire-based survey, on 2,460 young women, done by AIDWA last year in 13 States revealed that violence at home was an endemic and commonplace phenomenon. The respondents were all in the 16-30 age group.

In some States such as Tamil Nadu, all the married women surveyed admitted to violence by their husbands and in-laws. The survey findings from Uttar Pradesh were equally shocking. Of the 239 women surveyed, 132 reported domestic violence, and the trend was common across educated and uneducated families.

The majority of respondents from Mumbai and Pune revealed that remaining single was not an option; similarly, 33 of the 40 women surveyed in Rajasthan felt that marriage was essential. While most of the married women shared their experiences of domestic violence with their parents, none of them reported sharing such experiences with their in-laws. Of the 100 women surveyed in Haryana, 44 reported violence at the hands of their natal and marital family members.

The findings of various surveys conducted only reaffirm what has been known all along – that women do suffer a lot of violence in this country. The virtual absence of any marital rights makes women even more vulnerable in contemplating action against their husbands or in-laws. The latest NCRB data, which are for 2008, revealed that dowry deaths had gone up from 6,975 cases in 1998 to 8,093 in 2007; cases registered under Section 498A had risen from 41,375 to 75,930 (almost doubled), while reported sexual harassment cases had gone up from 8,053 to 10,950 in the 10-year period. There has been a steady escalation in the violence against women, that too dowry-related violence. If there had been a real decline, it would be reflected in the number of dowry deaths.

In a socio-cultural milieu that encourages a culture of silence as far as women are concerned, where getting married and staying married are extolled values, and where marriage is perceived as providing security and social respect, the possibility of a large number of women faking and falsifying incidents of violence and harassment against them is not only remote but almost improbable.

http://www.frontlineonnet.com/stories/20110408280709600.htm

Less than activist

Judicial review of executive action is not unique, but the remedy in the CVC case is a departure from the court’s record of approach to corruption.

Madhav Khosla in The Frontline

 

Supreme Court of India

THE Supreme Court’s decision to declare the appointment of Chief Vigilance Commissioner (CVC) P.J. Thomas as non-existent in law has stimulated much debate. The political fallout of the ruling has been widely studied, with pundits pondering over how seriously it may impact the Prime Minister‘s reputation. But the court’s decision deserves close scrutiny on questions exogenous to the political implications it may carry. In particular, the decision invites us to revisit the debate on judicial activism, which dictates contemporary analyses of the Indian Supreme Court. How can the CVC verdict best be characterised, and in what way can it inform our understanding of how the Supreme Court operates?

Over the past two decades, there has been an outpouring of literature characterising the Supreme Court as an activist institution. Wide-ranging judgments on questions of social justice and political decision-making, facilitated by the invention of public interest litigation, have helped encourage this characterisation. Indeed, it is now commonly assumed that the court fills a governance deficit that politics has created. However, the real story is far more nuanced. Although there has been a genuine expansion in the formal powers of the judiciary, we have noticed very few instances in which the court has actually gone the whole hog. In most cases, its effort has been to nudge government action, and its acts have been more rhetorical than substantive.

So, for instance, we find several decisions that attack corruption, but one can barely find any judgments that seriously punish corrupt politicians. The court’s jurisprudence has played, more than anything else, an expressive role. It helps to create awareness, initiate a change in social meanings, and perhaps even articulate constitutional aspirations. This expressive role is important, and it has its place in modern constitutional democracies; but it is vital that we do not overestimate its character.

Take, for instance, the question of social rights. In such cases, the Supreme Court adopts a far weaker approach than we believe. It enforces no systemic right; no person has the right to a certain minimum degree of a social service such as housing or health; neither does our citizenry have a right to ask that the state undertake reasonable measures to deliver such services. Rather, the Supreme Court adopts a conditional approach; an approach that makes the existence of a right conditional upon action taken by the state. So, for example, the court will often ask whether a hospital that has been built is functioning effectively, but it will never ask the state to build more hospitals. It will only review and enforce a right based on state action already undertaken, thereby meaning that the remedies awarded are modulated according to the conditionalities in operation. This approach exemplifies the expressive role that the Supreme Court plays.

Studied in the light of this generally reticent approach that the court actually adopts, the declaration striking down the CVC’s appointment is a rare one. Appointed by the President of India, following a recommendation by a High Powered Committee constituting the Prime Minister, the Minister of Home Affairs and the Leader of Opposition in the Lok Sabha, the post of the CVC is one of considerable prestige. The judicial review of executive action is not unique. But the remedy in this case, particularly given the high threshold that is ordinarily set for a violation in such instances, is unexpected and is a departure from the court’s previously lacklustre approach to corruption.

Yet, those who champion the decision fail to appreciate its narrow character. As some constitutional experts have observed, a careful study of the case reveals that it does little. The court struck down the recommendation of the committee that was tasked with the CVC’s appointment. But this was not because the committee’s decision was unreasonable. The court did not enter into the substantive merits of the decision-making process. Rather, it found the decision to be non-est in law on a thin procedural ground: the facts material to the candidature of P.J. Thomas had not been considered by the committee.

So, for example, the committee did not consider a first information report that had been registered against Thomas, a certain report by the Comptroller and Auditor General, and so on. Thus, a failure to adopt an appropriate process vitiated the ultimate decision taken by the committee. Judicial review on this narrow ground should make us pause before we celebrate the Supreme Court’s ruling and the role that the institution performs in our democracy. The court’s decision does not establish a broad and novel principle of law, and it would be a gross exaggeration to term the decision as one which is activist.

Moreover, the CVC verdict indicates that it is time we abandoned the “activist” metaphor altogether. The metaphor is used to critique judicial decisions but is not justified through any accepted theory of legal interpretation. That is to say, decisions are sometimes branded as activist because they move beyond a strictly textual reading of a legal source; at other times, the metaphor is used when a decision may depart from precedent; at some moments, it is embraced to condemn a decision on institutional grounds – on the grounds that the judiciary has taken an action that should legitimately be taken by elected representatives, and so on. There is no clear understanding of what kind of critique the term “activist” truly levies, and it consequently becomes a convenient way to denounce a decision that one finds personally unfavourable.

Further, if we move beyond singular notions of activism and the above difficulty to adopt a holistic understanding of judicial activism, we notice that the term clouds the reality that judicial decisions are multifaceted in nature. They often have strands of activism and restraint. The CVC judgment provides an excellent case in point. On the one hand, the decision strikes down a public appointment, an outcome that the court is not known to typically deliver. In this respect, it will not be very unfair to characterise this aspect of the decision as one that is activist. And yet, the decision is carefully founded on a narrow ground, it involves no substantive review, and the court is cautious in ensuring that it can find only very limited application in future cases. In this respect, then, one can imagine the decision being understood as exhibiting restraint.

This aspect of the decision may well prompt some disappointment. While the court did establish principles for future CVC appointments, it did not go further and establish a general legal principle for how charges of corruption must be dealt with in all public appointments of this nature. In this respect, it is certainly true that the decision has not led, as commentary on the decision observed, to the court rescuing Indian democracy.

But it may be worth being measured about such disappointment. The court is at present swimming in rough waters. Chief Justice S.H. Kapadia has inherited a Supreme Court that is increasingly fractured, speaks in many voices, and is in genuine danger of lacking an institutional identity. Narrow rulings can be risky; taken to their extreme they can inhibit the coherent development of law and disturb the consistency that is the law’s chief claim to authority. But in moments of political tension, where the political legitimacy of the court is often questioned, narrow rulings may be more effective than broader ones. Rather than viewing this as an instrumentalist argument in favour of the court’s approach, it is simply a reminder that it is sometimes unwise if not risky for judges to do too much. Indeed, the remarkable political acceptance that the decision has received may have something to do with the fact that the court did not disturb more appointments than were immediately necessary. Moreover, the reaction to the decision may also be useful in analysing the activist content of the decision, if a multifaceted understanding of this phenomenon is embraced.

Other than the CVC, who has observed that he will be challenging the ruling, it has been respected across political parties. The absence of any social or political backlash to a decision lends support to the claim that the decision is not unabashedly activist.

Finally, it is interesting to notice how the court’s reasoning illustrates the peculiar irony of the CVC controversy. The court took the position that the recommendation did not exist in law because material facts were not considered by the committee. This reasoning enabled it to defend the decision on grounds of procedure rather than substance. If the government’s position had been that the facts in question were considered but for mitigating reasons ultimately rejected, the court may well have been unable to review the recommendation on such strict reasons of procedure. Such a situation would have forced the court to engage in a substantive review of the recommendation if it had to strike it down, and it may well have refused to travel such an extraordinary distance.

But if the government had taken the position that it knew of the allegations against Thomas and yet decided, on balance, to appoint him, it would have meant political suicide. In other words, the stance that enabled the government to make a defendable political claim prevented it from making a defendable legal one.

Madhav Khosla, a Yale Law School graduate, is at the Centre for Policy Research, New Delhi. His study of the Supreme Court’s approach to social rights, “Making Social Rights Conditional”, is forthcoming in International Journal of Constitutional Law.

http://www.frontlineonnet.com/stories/20110408280703700.htm