Supreme Court takes Suo Moto Cognizance to Assess the Implementation of Rape Laws-Frames a series of Questions for States and Union Of India to Reply

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Taking suo motu cognizance on the assessment of the criminal justice system regarding sexual offences, the Supreme Court on Wednesday sought a reply and status report from all the states and High Courts on aspects such as investigation process, collection of evidence, recording of statement of victim and time frame for trial. Taking serious note of the rising number of rape cases in the country, the apex court underlined the need to collate information and status reports to ensure holistic implementation of the provisions of the rape law.The top court also appointed senior advocate Siddharth Luthra as amicus curiae for assistance in the matter.

Citing the delay in the verdict of the December 2012 gangrape case, the Supreme Court said: “The December 2012 rape case shocked nation’s conscience; delay in such matters created agitation, anxiety, and unrest in the minds of people.”

This comes two days after CJI SA Bobde appointed a committee of two Supreme Court Judges for ensuring speedy disposal of rape cases across the country. The Committee consists of Justices R Subhash Reddy and MR Shah. The CJI had constituted the panel in the exercise of his administrative powers for the purpose of monitoring of the cases through the High Courts to ensure their speedy disposal in a time-bound manner.

IN RE : ASSESSMENT OF THE CRIMINAL JUSTICE SYSTEM IN RESPONSE TO SEXUAL OFFENCES SMW (CRL.) No(s).04 OF 2019

  1. Post Nirbhaya incident, which shocked the conscience of the nation, many amendments were introduced in criminal law redefining the ambit of offences, providing for effective and speedy investigation and trial. Still, the statistics would reveal that desired results could not be achieved. As per the latest report of National Crime Records Bureau of Crime in India in the year 2017, total 32,559 cases of rape were registered in India.
  2. The delay in such matters has, in recent times, created agitation, anxiety and unrest in the minds of the people. The Nirbhaya case is not an isolated case where it has taken so long to reach finality. In fact, it is said that it has been one of the cases where agencies have acted swiftly taking into account the public outrage.
  3. We are, therefore, of the view that it is necessary to take stock of the implementation of provisions of criminal law, including the said amendments, relating to rape cases and other sexual offences. It is necessary to call for information with regard to status of affairs at ground level from various dutyholders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view to make criminal justice system responsive in the cases of this nature.
  4. The criminal law is set into motion by registration of the FIR. Section 154 of the Cr.P.C. provides about the information in cognizable cases and in effect registration of First Information Reports. The first Proviso to the sub-Section (1) of Section 154 inserted by the Amendment Act of 2013 and subsequently amended by the Amendment Act of 2018, provides for registration of First Information Report in cases of rape and sexual offences by a woman police officer or any woman officer. It is further provided that if the victim is temporarily or permanently mentally or physically disabled, the first information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such persons choice, in the presence of a special educator or an interpreter and the recording of such information may be videographed. It is also provided that the police officer shall get the statement of such person recorded by a Judicial Magistrate under Section 164, as soon as possible.
  5. As law laid down in the case of Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the police is dutybound to register the offence based upon the information given by the victim/informant in case of cognizable offence. In addition to this, the statements of the victim under Section 161 are required to be recorded by a woman police officer or any woman officer.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether all the Police Stations have a woman police officer or woman officer to record the information of the victim?

(2) In case, an information relating to offence of rape received at a Police Station, reveals that the place of commission of the offence is beyond its territorial jurisdiction, whether in such cases FIR without crime number are being recorded?

(3) whether provisions are available for recording of first information by a woman police officer or a woman officer at the residence of the victim or any other place of choice of such person in case the victim is temporarily or permanently mentally or physically disabled?

(4) whether all the District Police Units have the details of special educator or an interpreter in case of a mentally or physically disabled victim?

(5) whether the police department of states or union territories have issued any circulars to make provision of videography of the recording of statements and depository of the same?

(6) whether any state has published guidelines in the shape of Standard Operating Procedure (SOP) to be followed for responding after receipt of the information relating to case of rape and similar offences?

  1. By the Amendment Act of 2013, a new provision of Section 166A made the failure of a public servant to record any information of such offences, as prescribed, under sub-Section 1 of Section 154 of the Cr.P.C., a punishable offence, prescribing both rigorous imprisonment and fine for the guilty.

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether any case has been registered under the Section 166A of IPC against any public servant?

(2) whether there is any mechanism in place to complain about the non-recording of information by the officer giving cause to offence under Section 166A with any other institution/office, other than the concerned police station?

  1. Medical treatment and examination of the victim is a very important aspect not only for the immediate relief to the victim but also provides intrinsic evidences for the trial. Amendments in this regard have been inserted by the Amendment Acts of 2013 and 2018, whereby the newly introduced Section 357C of Cr.P.C. has sought to fix liability on medical institutions, both public or private to provide medical treatment free of cost to the victims of such offences as prescribed, together with a duty to inform the police of such incident. Failure to comply with the above provision has also been made an offence punishable under Section 166B of IPC.

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether any advisory or guidelines have been issued by the authorities to all the hospitals and medical centres in this regard?

(2) whether any case has been registered against any person under Section 166B of IPC?

  1. The manner in which the medical report of the victim is prepared is also a matter of concern. The Amendment Act of 2013 has inserted a new provision, i.e. Section 164A in this regard, which provides for the manner of medical examination as well as the guidelines for preparation of medical report. Other than the above information, many a times valuable information in consonance with the definition of rape as amended by the Act of 2013 are not supplied.
  2. Also, vide the Amendment Act of 2013, Section 53A was inserted in the Evidence Act, 1872. It provides that the evidence of character of the victim and of such person’s previous sexual experience with any persons shall not be relevant on the issue of such consent or the quality of consent. The effect of above provision is that previous sexual experience and in effect the habituation to sexual intercourse is now irrelevant for the purpose medical examination. Still, we come across the medical opinion such as “the victim is habitual of sexual intercourse” and the opinion suggesting possibility of consent on the basis of her previous sexual exposure.
  3. The Ministry of Health and Family Welfare, Government of India had prepared “Guidelines & Protocols: Medicolegal care for survivors/victims of sexual violence”.
  4. The Ministry of Women and Child Development has designed a Medical Kit for examination of the victim and the accused in cases of rape. The Union Government and the State Government have not provided this medical kit to all the Primary Health Centers or Community Health Centers. This Medico Forensic Kit is essential for collection of Medical/DNA evidence.
  5. Further, Per-Vaginum examination commonly referred to as ‘Two-finger test’ has been held to be of no consequence and violative of the dignity of woman. In the case of Lillu alias Rajesh and Anr. v. State of Haryana, (2013) 14 SCC 643 it was observed as follows:-

“In view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with genderbased violence. The State is under an  obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with his privacy. Thus, in view of the above, undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.”

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether the Medical Opinion in the cases relating to rape and similar offences is being given in compliance with the mandate of Section 164A of Cr.P.C.?

(2) whether the Medical Opinion in the cases relating to rape and similar offences is being given in tune with definition of rape under Section 375 of IPC as it stands today?

(3) whether the states have adopted the Guidelines & Protocols of The Ministry of Health and Family Welfare, Government of India or have they prepared their own Guidelines & Protocols?

(4) whether requisite Medico-forensic kit are available with all the hospitals/health centres run by the Government or by local authorities?

(5) whether the medical experts have done away with the Per-Vaginum examination commonly referred to as ‘Two-finger test’ and whether any directions have been issued by the states in this regard?

(6) whether medical experts have done away with the practice of giving opinion on the previous sexual experience of the victim or any directions have been issued by the states in this regard?

(7) whether lady medical practioners, if mandated, are available at all district and sub-divisional headquarters to draw up the medical examination report of the victim?

  1. Forensic examination and report play an important role during the investigation as well as trial for linking the culprit with the crime. With the advancement of the DNA science and its accuracy, the sampling for the purpose of Forensic examination and expeditious reports after due examination are vital to the just adjudication of the case. The sampling for the purpose of DNA test as well other forensic tests like forensic odontology is essential in cases relating to rape.
  2. In relation to the examination of the accused, Section 53A of Cr.P.C. provides for timely examination and guidance for preparation of medical report.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether there is any Standard Operating Procedure (SOP) or Protocol for taking samples for Forensic DNA, Forensic odontology and other forensics for Medical Practitioners?

(2) whether there are adequate number of equipped Forensic Laboratories at least one at every Division Level to conduct forensic DNA and Forensic odontology analysis regionally?

(3) subject to availability, whether Central Government has notified sufficient number of Government scientific expert other than already specified under Section 293 of Cr.P.C.?

  1. Section 173 (1A) Cr.P.C. provides that the investigation in relation to an offence under Section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376Db or 376 E of the Indian Penal Code (45 of 1860) shall be completed within two months from the date on which the information was recorded by the police officer in charge of the Police Station.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether police is completing the investigation and submitting the final report within a period of two months from the date of recording of information of the offence and if no, reasons for delay?

(2) whether sufficient number of women police officers are available to conduct investigation into the offences relating to rape and other sexual offences?

  1. Sub-Section (5A) of Section 164, Cr.P.C. provides for recording of statement of the victim by the Court. Other than recording of statements under Section 164, for the purpose of recording of statements during the trial, Section 119 of Evidence Act provides for assistance of an interpreter or a special educator in recording the statement of the witness unable to speak but capable to give evidence in any other manner. It further provides that such statement shall be video graphed.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether the police is taking the victim for recording of the statements as soon as the commission of the offence is brought to the notice of police?

(2) whether the Magistrate Courts or the trial courts have the availability of the interpreter or special educator in each Districts?

(3) whether the Magistrate Courts or the trial Courts have the facility of videography of the statements and depository of the same in the Courts?

  1. Section 26 clause (a)(iii) of Cr.P.C. provides for trial of such offences to be conducted by a Court presided over by a woman judge, as far as practicable. Further, Second proviso to sub-Section 327(2) of Cr.P.C. also mandates that in camera trial shall be conducted, as far as practicable, by a woman Judge or Magistrate. It must be noted that the insertion of the above proviso has a very important object and the rider of “as far as practicable” cannot be used to overcome the mandate in ordinary manner.
  2. The need for speedy trial of the cases relating to offence of rape has been emphasized again and again this Court. The proviso to sub-Section (1) of Section 309 mandates that the inquiry of trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge-sheet.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether trial of cases relating to rape are being conducted by Courts presided over by a woman?

(2) whether sufficient number of lady judges are available to preside over the Courts dealing with sexual offences and rape?

(3) whether all courts holding trial of cases relating to offence of rape have requisite infrastructure and are conducting in camera trial?

(4) whether the trial relating to cases of rape is being completed within a period of two months from the date of filing of charge-sheet, if not, the reasons for the delay?

 (5) whether sufficient number of special Courts have been established to deal exclusively with the cases of rape and other sexual offences?

  1. Under Section 230 of Cr.P.C., a trial program is generally prepared on the application of the prosecution. This Court in the case of State of Kerala v. Rasheed, AIR 2019 SC 721 has held as followings:-

“The following practice guidelines should be followed by trial courts in the conduct of a criminal trial, as far as possible:

  1. a detailed case-calendar must be prepared at the commencement of the trial after framing of charges;
  2. the case-calendar must specify the dates on which the examination-in-chief and cross-examination (if required) of witnesses is to be conducted;

iii. the case-calendar must keep in view the proposed order of production of witnesses by parties, expected time required for examination of witnesses, availability of witnesses at the relevant time, and convenience of both the prosecution as well as the defence, as far as possible;

  1. testimony of witnesses deposing on the same subject matter must be proximately scheduled;
  2. the request for deferral under Section 231(2) of the Cr.P.C. must be preferably made before the preparation of the case calendar;
  3. the grant for request of deferral must be premised on sufficient reasons justifying the deferral of cross-examination of each witness, or set of witnesses;

vii. while granting a request for deferral of cross-examination of any witness, the trial courts must specify a proximate date for the cross-examination of that witness, after the examination in- chief of such witness(es) as has been prayed for;

viii. the case-calendar, prepared in accordance with the above guidelines, must be followed strictly, unless departure from the same becomes absolutely necessary;

  1. in cases where trial courts have granted a request for deferral, necessary steps must be taken to safeguard witnesses from being subjected to undue influence, harassment or intimidation.”

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether case-calendar as envisaged in the Rasheed case is being prepared by the Trial Courts keeping in mind the time line of two months mandated by Section 309 of Cr.P.C.?

(2) whether the attendance of the witnesses is being ensured by the Prosecution to ensure the examination of witnesses on the fixed dates?

(3) whether any guidelines have been issued by Bar Councils or Associations urging the Advocates to assist the Court in completion of trial within the stipulated period?

(4) whether special exclusive permanent trial courts have been created in the state to deal with cases relating to rape and sexual assaults?

 (5) whether any High Court has constituted Special Bench for expeditious hearing of appeal in these cases?

  1. The protection of witness during the investigation and trial is essential in cases of this sensitive nature. Many a times the accused live in proximity of the victim. The possibility of tampering with evidence and pressurizing the witness affects fair trial.

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether any policy of victim/witness protection in the cases relating to rape is framed and implemented?

(2) whether police protection is being provided to the victim during investigation and trial of the offence?

(3) whether there are special waiting room in the Court premises for victim/witnesses of cases relating to offence rape?

(4) whether the trial Courts have taken appropriate measures to ensure that victim woman is not confronted by the accused during the trial as mandated by Section 273 Cr.P.C.?

  1. Section 357A(2) Cr.P.C. provides for award of compensation to the victims. The District Legal Service Authority or the State Legal Service Authority are bound to decide as to the quantum of compensation to the victim on the recommendation of the Court. By the order of this Court in W.P. (C) 565/2012 titled Nipun Saxena v. Union of India, the National Legal Services Authority, New Delhi had prepared a Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes – 2018. This scheme has been circulated among all states for necessary actions. The Scheme comprehensively provides for the rehabilitation and compensation for the victims of Rape.
  2. As the victim goes through a mental trauma and requires immediate counselling, legal aid and medical, social and in some cases, economic rehabilitation.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether Courts are recommending the District Legal Service Authority or the State Legal Service Authority for compensation in appropriate cases?

(2) whether the amount of interim or final compensation is being provided to the victims in time bound manner?

(3) whether the above-mentioned Scheme of 2018 or suitably amended Scheme, has been implemented by the states for rehabilitation of victims of rape?

 (4) whether the SLSA or NLSA has formulated any scheme for social, medical and economic rehabilitation of the victim?

(5) whether any state has prepared a policy with regard to the counselling of the victim and medical, social and in some cases, economic rehabilitation of the victim?

(6) whether there are any counselling/rehabilitation centres in existence for the victims of rape?

  1. In the year 2013, a separate fund namely Nirbhaya Fund for projects of women safety to support initiatives by government and NGOs was created, and it is important to inform ourselves how far has the purpose of setting up the fund been achieved.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) Utilization of the Nirbhaya Fund by Central or State Government(s) for the purposes envisioned?

  1. Let the matter be registered as Suo Motu Writ Petition Criminal with the caption “Assessment of the Criminal Justice System in response to Sexual Offences”.
  2. In order to collate all the information and status and provide a holistic view of implementation of provisions of law and to suggest measures for making the criminal justice system more efficacious and responsive towards the offence of rape and other sexual offences, we request Shri Sidharth Luthra, Senior Advocate to assist the Court as Amicus Curiae in the matter.
  3. The learned Solicitor General is requested to extend all co-operation to the Amicus Curiae in this regard.
  4. The Secretary General, Supreme Court of India shall also extend co-operation in respect of calling for information and status reports from the Chief Secretary and the Director General of Police of all the States, the Registrar General of all the High Courts and other functionaries, as may be required.

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India is Lacking in the Amount of Sexual and Violent Crime Cases that Utilize DNA to Link the Accused to the Crime Scene

CA more aggressive DNA approach at crime scene, in the lab and in the court, will increase conviction rates and make India safer for women

New Delhi, Delhi, India

Crime in India is seen to be on an upsurge, especially rape and sexual assault cases where the conviction rate has fallen from 49% to as low as 29% in the last 3 years (between 2012 and 2015) in Delhi alone, and over 1,37,458 rape cases still stand pending for trial across India[1]. The lack of scientific methods in investigations is hampering justice delivery and the need for DNA casework expansion in India is now increasingly critical and urgent to build conviction in such cases.

“India is simply not collecting enough DNA at violent and sexual crime scenes,” said Tim Schellberg, President, Gordon Thomas Honeywell Governmental Affairs (GTH-GA), a legal and policy expert of forensic DNA. “DNA is the world’s greatest crime fighting tool. Consequently, DNA should be aggressively collected, tested and compared to the accused. DNA testing is happening in India, but not nearly enough,” added Schellberg.

GTH-GA estimates that the United Kingdom completes DNA testing on over 60,000 crime scenes annually. India is over 13 times larger in population that the United Kingdom, yet GTH-GA estimates that India’s crime labs collectively complete DNA testing on less than 7,500 cases annually. This is a very low number.

Furthermore, when DNA is collected, it often goes into large backlogs due to India’s lack of DNA testing infrastructure. The pendency of the backlogs for sample testing in the FSL at Rohini is 5661 and for the one at Chanakyapuri are 458[2. GTH estimates that most of the backlog cases mentioned is likely DNA.

As per the statistics available on the website of Directorate of Forensic Science, Himachal Pradesh[3], the pendency of DNA cases has gone up. In January 2017, the pendency of cases was 605 and in June 2017 was 674, whereas, the average collection of DNA cases is around 30 per month and average disposal of 15 cases a month. This shows almost 50 per cent increase in pendency at FSL per month.

As per the NCRB data, more than 34,651 rapes were registered in 2015. On the contrary, the annual report of the Centre for DNA Fingerprinting and Diagnostics (CDFD)[4] available for the latest year 2015-16 shows that they have received 99 DNA cases specifically for rape from different states.
B
Senior Advocate, Delhi High Court, Vivek Sood agrees that not enough DNA is being utilized in rape cases. “In Delhi, the numbers of rape cases have tripled over the last five years, registering an increase of 277% from 572 in 2011 to 2,155 in 2016. In these cases, I rarely see DNA evidence presented by the prosecutors during trial. This is because DNA is not properly collected at crime scenes on a routine basis, and when it is collected, it is stuck in long backlogs in our underfunded crime laboratories. As a result, there is an over reliance on verbal statements provided by witness/witnesses in the court that can result in wrongly convicting the innocent. We must have more DNA testing to ensure a swift and just result for both the victims and the accused.”

Collection, transportation and storage of DNA forensic evidence are the key factors in rape investigations, which unless well-preserved and transported to FSL result in weak prosecutions and low conviction rate. India currently has approximately 30 FSLs with varied capacity to examine DNA Samples. To strengthen the criminal justice system, it is therefore critical to invest in the much required infrastructure and upgrading the FSLs for DNA – Collect, Test and Compare.

The availability of DNA when at trial to link the accused to the crime is seen throughout the world as the best way to increase charging and conviction of criminal offenders. One study from Denver, Colorado (United States) shows that when DNA is available the prosecutions, ‘charging rate’ was 8 times higher than cases that did not have DNA casework that matched a known suspect. While this data shows prosecution ‘charging’ and not conviction, the point is made showing how the system likes it when DNA is present. A charge rate that is 8 times higher when DNA is present is a big number and obviously will lead to a higher conviction!

EIndia can be a far safer place for women if DNA was collected and tested at all violent and sex crime scenes where the criminal offender leaves DNA. This is a must for all law enforcement authorities, and courts and prosecutors to ensure that the DNA be tested quickly and be used in courts to expedite the judicial process.

 GTH-GA works globally on DNA

Gordon Thomas Honeywell Governmental Affairs is globally recognised public affairs consultancy firm that has expertise with forensic DNA database policy, legislative, and law. For nearly twenty years, consultants at GTH-GA have consulted in over 50 countries and states on legislation and policies to establish or expand criminal offender DNA databases. GTH-GA collaborates closely with governmental officials, crime labs, police and the DNA industry. GTH-GA operates the DNAResource.com website that has been used as the world’s primary source for DNA database policy and legislative information since 2000.

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
———————–

Making laws work for rape victims

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.)

Justice Verma panel for umbrella law on sexual assault

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

 

Going from Zero FIRs to e-FIRs

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BY APARNA VISWANATHAN PUBLISHED IN THE HINDU

The government must allow the online filing of first information reports in rape cases as that alone will ensure mandatory and automatic registration of complaints

On January 18, 2013, Delhi police chief Neeraj Kumar announced that Zero First Information Reports (FIRs) may be registered on the basis of a woman’s statement at any police station irrespective of jurisdiction. This means women can file an FIR at any police station and the complaint is required to be registered on the basis of the woman’s complaint verbatim. Mr. Kumar stated: “The woman’s statement has to be taken as gospel truth and a probe needs to be initiated on its basis.”

Important step forward

At the same time, the Delhi police chief announced a series of other measures such as the recruitment of 418 women sub-inspectors and 2,088 women constables, deployment of PCR vans outside women’s colleges, the provision that women can call 100 to seek assistance to be dropped home at night by a PCR van, and 24-hour police cover for areas around entertainment hubs with heightened security between 8 pm and 1 am. While the foregoing measures must certainly be welcomed as an important step forward towards making the criminal justice system functional, it is surprising that e-governance has not been utilised by the Delhi police as an important solution in a country which is considered the world’s leading provider of IT enabled solutions.

E-governance is the application of information and communication technology to delivering government services, exchange of information and integration of various stand-alone systems and services between the government and citizens as well as back-office processes within the government. Through e-governance, government services can be provided to citizens in an efficient and transparent manner, which is of desperate need in India.

As shown by the introduction of the Zero FIR, the starting point towards improving criminal justice is the filing of the criminal complaint itself. It is well known that the filing of FIRs, particularly for cognisable offenses, is an extremely difficult exercise — more so for a rape victim who has to ceaselessly recount the horrific event. Police stations often refuse to register FIRs for cognisable complaints, and innumerable rapes around the country go unreported. The victims then are forced to file a private complaint in court under Section 156(3) of the Criminal Procedure Code (CrPC) seeking an order directing the police to register an FIR. The police chief’s announcement that the woman’s statement will be taken as the “gospel truth” is an important first step that will hopefully enable rape victims to register an FIR.

The police have often taken the view that, under Section 154 of the CrPC, complaints need to be investigated before the FIR is registered because the complaint could be a disguised civil or commercial dispute or a way of settling personal enmity. Complaints of criminal cheating and fraud are sometimes filed as a way of pressuring business associates to settle financial disputes or for personal grudges. However, this is highly unlikely to occur in the case of rape. In fact, there is no reason why all complaints for at least cognisable offences should not be registered as FIRs and then investigated.

While the Supreme Court has, in various judgments, taken contradictory views on the issue of whether the police are required to investigate a complaint before registering an FIR under Section 154 of the CrPC, it has repeatedly expressed its deep anguish over the failure of police to register FIRs, particularly in rape cases. Hopefully, the police will now register an FIR based on the woman’s statement as per the recently announced measures. However, the mandatory and automatic registration of FIRs can be ensured only through e-governance, that is, by providing for online registration of FIRs by citizens.

Tracking network

The online registration of FIRs was supposed to be implemented by 2013. On March 21, 2012, the then Union Home Minister, P. Chidambaram, stated in the Rajya Sabha that online registration of FIRs would be possible once the server and network connectivity was established by the end of 2012 or early 2013. However, the online filing of FIRs will be made possible only upon the implementation of the Crime and Criminal Tracking Network and Systems (CCTNS), an ambitious Rs. 2,000 crore project of the Home Ministry, aimed at increasing the efficiency and effectiveness of policing through e-governance by creating a state-of-the-art IT-enabled crime tracking system for investigation of crime and detection of criminals.

Under CCTNS, 14,000 police stations will be automated as well as 6,000 offices of higher police officials. The CCTNS is a platform for sharing real time information by law-enforcement agencies, which will improve identification of criminals and crime investigation. Funds in the amount of Rs. 418 crore have reportedly been released to the States/Union Territories and 4.54 lakh people have been trained. The CCTNS project was supposed to be completed in March 31, 2012. However, in June 2012, the Cabinet Committee on Economic Affairs (CCEA) extended the deadline to March 2015.

In November 2012, the Home Ministry began monitoring the status of the CCTNS project on a weekly basis and appointed 20 Joint Secretaries to monitor the progress of the project and ensure completion by March 2015. The delay in project implementation was reportedly due to the non-availability of common application software (CAS) and infrastructure problems. Since law and order is a State issue, issues of coordination between the States also contributed to the delay. However, it is unclear why the Indian government needs to implement a Rs.2,000 crore project before enabling online filing of FIRs. In view of the great national imperative in creating deterrence against rape, websites and e-filing mechanisms should be immediately created to permit e-filing of FIRs at least in rape cases.

The online filing of annual accounts and other documents was successfully implemented several years ago by the Ministry of Company Affairs. Various State governments have also provided for online filing of police complaints and online payment of traffic challans. The Himachal Pradesh Police have introduced an interactive portal called “Kanoon Vyavastha,” the first of its kind in the country, by which a police complaint can be filed online or by SMS. As per a report in the Financial Express, of 1,821 SMSs received, 22 FIRs were registered without the complainant having to visit the police station. Of these 22 FIRs, reportedly only one was related to a rape case. After the launch of SMS service in May 2010, 4,392 SMSs were received, of which 82 FIRs were registered. The complainant can check the status of the FIR online and post comments. The web portal is used for daily crime reporting, providing details of missing persons and vehicles and road accidents. Jalandhar reportedly has an online crime tip page where people can anonymously inform the police of a crime that has been committed. Similarly, Maharashtra has an e-complaint system for reporting minor crimes, that is, non-cognisable offences.

Simultaneously, with the introduction of Zero FIRs, online filing of FIRs at least in rape cases should immediately be implemented irrespective of the status of the CCTNS project. The introduction of e-FIRs will be an important signal to all criminals that rape will not go unpunished.

(Aparna Viswanathan is author of Cyber Law: Indian and International Perspectives (Lexis Nexis Butterworths Wadhwa 2012))

Decision on Sec 377 could affect other sexual offences in IPC: SC

TIMES OF INDIA

NEW DELHI: The Supreme Court on Wednesday said its final decision on the correctness of the Delhi High Court judgment — which decriminalized Section 377 of Indian Penal Code covering a sexual act in private between consenting adults — could have far reaching impact on several sexual offences listed in the penal laws.

A bench of Justices G S Singhvi and S J Mukhopadhaya requested the counsel for parties to keep in mind the evolving social ethos as the key words in the HC judgment — “consenting adults committing a sexual act in private” – could have a bearing on several other sexual offences enumerated in the IPC.

“Though the focus of our judgment would remain on Section 377, but keep in mind that it could have bearing on provisions relating to other sexual offences. Obscenity could be one such provision,” the bench told senior advocate Amarendra Saran, who was arguing against the HC verdict on behalf of Delhi Commission for Protection of Child Rights (DCPCR).

The court was possibly hinting at offences like adultery and obscenity in public, mostly misused by police to harass couples in parks.

Section 497 defines adultery. According to it – “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

In this case, the consent of the woman is immaterial and the consenting sexual act still would constitute an offence if the consent of her husband was not taken.

Saran said NGOs had challenged the legality of Section 377 before the HC on the ground that it targeted homosexuals as a class and hence violated the LGBT (lesbian, gay, bisexual, transgender) group’s right to equality guaranteed under Article 14, right to privacy under Article 21 and the constitutional guarantee under Article 15 prohibiting discrimination on the basis of sexual orientation of such persons.

He argued that right to privacy did not confer right on consenting adults to commit an act in private which was illegal. “In other words, right to privacy does not confer immunity to crimes committed by consenting adults in private. Hence, the reasoning of the HC that Section 377 is violative of right to privacy is clearly erroneous,” Saran said.

He said Section 377 did not suffer from class bias. “It applies uniformly to any man or woman if such person indulged in carnal intercourse which is against the order of nature,” he said and cited a 1990 Supreme Court judgment to back his argument that all “non penile-vaginal” intercourse would fall within the meaning of “carnal intercourse against the order of nature”, which has been classified as an offence under Section 377.

The DCPCR counsel said “there was a vast cultural difference in the Indian society and other societies of the world” and faulted the Delhi HC judgment for basing its reasoning on foreign court rulings.

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

Rape victim’s post-crime trauma, state’s apathy ‘shock’ Delhi court

New DelhiThe post-crime trauma suffered by a teenaged rape victim and her family members and the state’s apathy to their plight has shocked a Delhi court, prompting it to order Rs one lakh as interim compensation to her.

Additional Sessions Judge Kamini Lau expressed shock after finding that the victim had tried to commit suicide by consuming acid, leading to replacement of her food pipe with an artificial one while her father suffered two heart attacks and her mother had to work as a maid to sustain the family with no state aid whatsoever.

“I’m shocked to observe that despite this pathetic state of the victim and her family, who, I find, are feeling a sense of physical and psychological isolation, no assistance has been provided to her by the state,” the judge observed, ordering Delhi Government to award her the compensation, noting the vegetative state the victim has reduced to.

“The victim, who was hardly 14 year old at the time of incident, has now been virtually reduced to a vegetable existence after she consumed acid pursuant to the incident.

“Rape of a minor not only affects her but has also a devastative impact on her entire family, which equally suffers in silence as has happened in the present case,” the court said.

The court’s order came after the girl’s mother approached it along with her daughter to narrate their woes in the wake of the girl’s rape and to apprise it of their inability and unwillingness to fight the case and seek justice.

“The indifference of the state to the plight of victims of rape is writ large since despite innumerable directions of the Supreme Court in this regard (compensation to victims) and the effective scheme for Restorative and Compensatory Justice to rape victims is yet to be put in place,” the court noted.

The Delhi High Court too had earlier ordered the state government to implement a scheme for compensation to such victims.

The court ordered compensation, pointing out that the apex court too had held that subordinate courts trying rape cases have the jurisdiction to award interim compensation as the offence of rape is against the victim’s basic human rights and violation of her fundamental right to life and liberty.

The case dates back to 2007, when the 14-year-old victim had been raped by one Vicky Sain of Vikaspuri police station area in West Delhi. The offender’s sister too faced the charge of abetting the crime by her brother.

The victim, now 18, had allegedly tried to commit suicide after her rape by consuming acid. Though she survived her suicide bid, she suffered extensive damage to her internal system and despite replacement of her food pipe, she is not able to swallow food and speak properly even now. She got no state assistance in the last four years, while undergoing treatment at the All India Institute of Medical Sciences.

“It is cases like these which the Ministry of Women and Child development needs to target for restorative justice so that the medical and legal assistance, besides professional and psychological counselling, shelter and other support is provided to the victim, which, in the present, case has not been done,” the judge said.

Financial ssistance rape victim scheme

Panel clears Bill to save kids from sex crimes

THE TRIBUNE / New Delhi, December 21

The landmark law on protection of children from sexual assault and pornography crossed the first big hurdle today as the Parliamentary committee reviewing its provisions cleared the Bill with one major rider. The committee rejected the government’s proposal to treat 16 years as the age of consent and not classify as an offence consensual sexual acts with children aged 16 to 18 years.

Though the Ministry of Child Development, piloting the law, argued for the age of consent saying sexual awareness of children couldn’t be overlooked, the committee said once the law had defined everyone up to 18 years as children, the element of consent should be treated as irrelevant. The ministry’s contention that not having the element of consent would lead to criminalisation of consensual action by 16 to 18-year olds didn’t go down well with the committee which said in its report to the Parliament today, “By having the element of consent, the focus will be on the victim, leading to his or her re-victimisation. Children can’t be exposed to lengthy cross examinations on issues of consent.”

The committee has further asked the government to cover religious institutions like muths, madrasas and monasteries under the law. It accordingly sought amendment to the clause – “Whoever being on the management or staff of an educational institution commits penetrative sexual assault on a child in that institution…would be punished” – to include religious institutions where young boys go to study. The law also covers households, hospitals, schools and juvenile homes.

The parliamentary panel has, however, sought the word “shared household” defined as “a household where the person charged with the offence lives or has at any stage lived in a domestic relationship with the child”. The existing definition is a bit limiting. This clause will protect children from family and is historic considering the 2007 government study which revealed that 53 per cent children had suffered sexual abuse and half of these were at the hands of persons in the position of trust.

The Protection of Children from Sexual Offences Bill 2011 (introduced in the Rajya Sabha on March 23 and referred to the committee) further allows children and anyone from the public to report the offence and its apprehension to the local police or special juvenile police unit. It covers sexual offences against children at the time of communal violence and provides for special courts to deliver justice in a child-friendly environment.

Its landmark features are – definition of sexual assault for the clarity of victims and law enforcers and the presumption that those who committed the offence are accused unless proved otherwise. Though the law has safeguards to prevent false complaints, it ensures that cases don’t fall through for want of evidence which is difficult to collect.

With this law, India seeks to fulfil its commitment to the UN Convention for Rights of the Child that it ratified in December 1992. The law is path-breaking considering 24 per cent rapes in India involve children (11 per cent of these involve those under 14 years). Government data further shows that conviction in rapes fell from 38.7 per cent in 2001 to 30 per cent in 2009; in matters where minors were procured for prostitution, conviction rate fell sharply from 39.1 per cent to 18.9 per cent over the same period.

A STEP FORWARD

Parliamentary Committee rejects government proposal to treat 16 years as the age of consent and not classify as an offence consensual sexual acts with children aged 16 to 18 years

http://www.tribuneindia.com/2011/20111222/main5.htm 

Protection of Children from Sexual Offences Bill,2011