A 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. 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, 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) available for the latest year 2015-16 shows that they have received 99 DNA cases specifically for rape from different states.
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!
India 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.
In view of the order dated 26 July 2012 in Criminal Appeal 135/2010 – Budhadev 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”.
He 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.
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.
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 ———————–
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.
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, 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.)
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.
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
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.
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))
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.
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.