The Protection of Children from Sexual Offences Act, 2012, has been passed by the Lok Sabha today, 22nd May, 2012. The Bill was earlier passed by the Rajya Sabha on 10th May, 2012.
The Protection of Children from Sexual Offences Act, 2012 has been drafted to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. For the first time, a special law has been passed to address the issue of sexual offences against children.
Sexual offences are currently covered under different sections of IPC. The IPC does not provide for all types of sexual offences against children and, more importantly, does not distinguish between adult and child victims.
The Protection of Children from Sexual Offences Act, 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography. These offences have been clearly defined for the first time in law. The Act provides for stringent punishments, which have been graded as per the gravity of the offence. The punishments range from simple to rigorous imprisonment of varying periods. There is also provision for fine, which is to be decided by the Court.
An offence is treated as “aggravated” when committed by a person in a position of trust or authority of child such as a member of security forces, police officer, public servant, etc.
Punishments for Offences covered in the Act are:
Penetrative Sexual Assault (Section 3) – Not less than seven years which may extend to imprisonment for life, and fine (Section 4)
Aggravated Penetrative Sexual Assault (Section 5) – Not less than ten years which may extend to imprisonment for life, and fine (Section 6)
Sexual Assault (Section 7) – Not less than three years which may extend to five years, and fine (Section 8 )
Use of Child for Pornographic Purposes (Section 13) – Five years and fine and in the event of subsequent conviction, seven years and fine (Section 14 (1))
The Act provides for the establishment of Special Courts for trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process. The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences. These include:
Recording the statement of the child at the residence of the child or at the place of his choice, preferably by a woman police officer not below the rank of sub-inspector
No child to be detained in the police station in the night for any reason.
Police officer to not be in uniform while recording the statement of the child
The statement of the child to be recorded as spoken by the child
Assistance of an interpreter or translator or an expert as per the need of the child
Assistance of special educator or any person familiar with the manner of communication of the child in case child is disabled
Medical examination of the child to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence.
In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
Frequent breaks for the child during trial
Child not to be called repeatedly to testify
No aggressive questioning or character assassination of the child
In-camera trial of cases
The Act recognizes that the intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalized. The attempt to commit an offence under the Act has been made liable for punishment for upto half the punishment prescribed for the commission of the offence. The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.
For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the accused. This provision has been made keeping in view the greater vulnerability and innocence of children. At the same time, to prevent misuse of the law, punishment has been provided for making false complaint or proving false information with malicious intent. Such punishment has been kept relatively light (six months) to encourage reporting. If false complaint is made against a child, punishment is higher (one year).
The media has been barred from disclosing the identity of the child without the permission of the Special Court. The punishment for breaching this provision by media may be from six months to one year.
For speedy trial, the Act provides for the evidence of the child to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible.
To provide for relief and rehabilitation of the child, as soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police, these will make immediate arrangements to give the child, care and protection such as admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the local police are also required to report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of the child.
The Act casts a duty on the Central and State Governments to spread awareness through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act.
The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor the implementation of the Act.
Expressing serious concern over the rising number of deaths in road accidents, the Supreme Court on Thursday called for revisiting the sentencing policy to ensure harsh punishment for the ‘killers on wheels’.
Upholding the three-year jail sentence awarded by the Bombay High Court to Alister Anthony Pareira for causing the death of seven persons when his car ran into the pavement in Mumbai, a Bench of Justices R.M. Lodha and K.S. Khehar said the punishment must be in proportion to the crime.
Writing the judgment, Justice Lodha said, “The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal.”
The Bench said: “The World Health Organisation, in the Global Status Report on Road Safety, has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau [NCRB], the total number of deaths due to road accidents in India every year is now over 1,35,000. The NCRB report also states drunken driving as a major factor for road accidents.”
It said the country had the dubious distinction of registering the highest number of deaths in road accidents. “It is high time lawmakers revisit the sentencing policy reflected in Section 304 A IPC [death due to negligence]. It is true that the appellant has paid compensation of Rs. 8,50,000 but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, the High Court had been quite considerate and lenient in awarding to the appellant a sentence of three years for an offence under Section 304 Part II IPC [death caused by driving] where seven persons were killed.”
According to the Bench, “the facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II IPC undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime. Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, the sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement.”
“Travesty of justice”
On the plea for letting the appellant off with the sentence already undergone i.e. two months in a case like this, the Bench said “in our view, it would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime.”
It said: “We are satisfied that the facts and circumstances of the case do not justify benefit of probation to the appellant for good conduct or for any reduction of sentence. The appeals are, accordingly, dismissed. The appellant’s bail bonds are cancelled. He shall forthwith surrender for undergoing the remaining sentence as awarded by the High Court in the judgment dated September 6, 2007.”
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
Violence against women in the private realm is relegated to secondary status, whether in India or in the United States. Strong laws and public policies are essential steps toward combating such violence. But the real solution lies in a culture shift, in the world, and in each of our homes
MALLIKA KAUR TRIBUNE CHANDIGARH
Three friends walked home after another tiring rehearsal for the school function. It was barely dusk. When the man leapt out of nowhere to pounce on Bandana (name changed), no one was sure what happened. Then a yell grew out of one belly and found its way down the road, down their backs, and into small eighth-grade fists that pounded on the man. He ran. The girls were proud they had fought. When they got home, they told the story solemnly. “Well, that’s what happens when you go walking around in the evenings, going out like that alone!” Bandana’s father message was clear — Chandigarh, 1997.
Brushed under the carpet
The message young girls begin receiving from our families, friends, and society becomes engrained by the time they reach womanhood: that we must not make the unforgiveable mistake of becoming victims of violence. While violence by strangers at least provides some room for women expressing their agony and demanding redressal, violence within the home remains a taboo topic. And this taboo crosses geographic, ethnic, and racial borders.
Victims of domestic abuse
On 17 August 2011, the Inter-American Commission on Human Rights published its opinion finding the United States on the wrong side of human rights and domestic violence survivors. The Commission had considered the case of Jessica Lenahan (formerly Gonzales) whose three young daughters were abducted by Lenahan’s abusive husband, Simon Gonzales, in Castle Rock, Colorado in 1999. Despite Lenahan’s repeated calls and pleas to the police, reporting that she already had a domestic violence restraining order (a legal remedy the US has made relatively easily accessible to its residents) against Simon, the police failed to act for 10 hours. Eventually, Simon Gonzales drove up to the police department and opened fire. He was shot dead by the police. The three girls were subsequently discovered shot to death inside Simon’s truck. Jessica’s legal battle for this tragic loss yielded no results.
In 2005, the US Supreme Court even found that the police involved had not violated the US Constitution by their inaction. However, the Inter-American Commission found that the US had indeed violated human rights by failing to uphold its laws to protect its nationals from domestic violence.
Laws alone not enough
In India too, domestic violence is a punishable offense under the law, even if only rather recently. The Protection of Women from Domestic Violence Act, 2005, which became effective starting October 26, 2006, clearly recognised domestic violence as a punishable offence. However, the recent shaming of the US—a country that has innumerable times more extensive legal protections and services for domestic violence survivors-provides a moment of pause from comparing the wide (perhaps incomparable) chasm between the two legal systems and rather understanding a sad commonality. Laws alone cannot curb violence in the homes as long as domestic violence continues to be treated ‘special’. When it comes to such crimes, we often hear: “There must be two sides to the story” or “they both have strong personalities” or “he is frustrated since he lost his job.”
But, consider this scenario: if my neighbour loses his job, and proceeds to pick fights with me every day, gets drunk and curses me, breaks a window, wouldn’t you agree with my decision to call the police, whether or not he ever physically touches me? But if my partner does the same, why shouldn’t he conform to the standard of behavior, the law and society demand from my acquaintance-neighbour?
Breaking uneasy silence
Such uncomfortable discussions are thus largely missing in our living rooms. The domestic violence movement in the US has been asking precisely such questions more publically, loudly, and brazenly, than in many other parts of the world. For example, during October, nationally recognised as ‘Domestic Violence Awareness Month’ in the US, several public awareness activities are undertaken country-wide. During ‘Standing Silent Witness’ hours, women and men line up in busy city squares holding placards or wearing T-shirts with slogans acknowledging someone they know (or know of) who has faced domestic violence. During ‘Remembrance Days,’ survivors, allies, advocates, join together to remember those who have died because of domestic violence and also celebrate those who have survived. Purple ribbons, which have become the symbols of solidarity with anti-domestic violence work, are made into pins and passed out at local events; worn on bags and jackets; and hung on doors.
In India, we saw the Bell Bajao campaign, by the non-profit Breakthrough in 2008. TV, radio, online and print media were employed to circulate catchy calls for action by society to take a stand against domestic violence. To break the uneasy silence.
Measuring domestic violence
The anti-violence movement in the US has also promoted the measurement of domestic violence crimes, and the publicising of the statistics, so as to respond to the universal reaction—“We aren’t that kind of a family!”
On an average, according to the US Bureau of Justice Statistics, more than three women and one man are murdered by their intimate partners in the US every day. The Center for Disease Control has found that one in four women and one in nine men in the US report being victims of domestic violence at some points in their lives. Also, more recently, teen dating violence has been studied as a priority: approximately one in five female high school students report being physically, sexually, or emotionally abused by a dating partner.
In India, the National Family Health Survey (NFHS), 2005-06, recorded that 37 per cent women reported being survivors of spousal abuse; that is more than 1 in 3. These statistics show that most of us know someone who is a survivor of such violence, and all of us then are in fact ‘that kind of a family.’
Violence knows no bar
When I began representing domestic violence survivors in Californian courts, one of my mother’s friend’s asked her in all earnest, “So is wife-beating really a problem with Americans too?” (She clarified later that she meant ‘white’ Americans, of course.) My work has borne out the statistics that domestic violence knows no race, class, or religious boundaries. However, socio-economic factors can increase vulnerability for such violence: for example, if someone has no source of income, her abuser knows that her economic situation will prevent her from speaking about the violence or seeking help.
Domestic violence is a human rights problem that exists across borders, as the Inter-American Commission recently reminded the US—It is not a ‘women’s issue’ rather affects boys and men very severely. Indeed, India’s Protection of Women from Domestic Violence Act, 2005, does not cover men, and most commentaries on domestic violence-including this one-refer to the perpetrators of violence as male and the victim as female. This is simply because domestic violence victims are disproportionately female. However, men can be and are victims of violence by their partners in some cases as well, both in homosexual and heterosexual relationships. Moreover, this violence does not take place in a vacuum.
Children, girls as well as boys, are witnesses to such violence. Even if they are themselves never the direct targets of the violence, they bear the emotional costs of growing up in an environment of repeated cycles of fear, escalation of tensions, outbursts of violence, and misleading periods of calm. Studies show that children who grow up in violent homes, either themselves become vulnerable to being abused as adults or have a higher likelihood of becoming abusers in the future. This ‘cycle of power and control,’ which broadly describes domestic violence, has its immediate and collateral victims.
Move beyond campaigns
Campaigns such as ‘bell bajao’ or ‘standing silent witness’ or ‘remembrance days’ focus on cases where there are identifiable victims, in already violent relationships. Some of us might then still participate in these campaigns and still claim, “We aren’t that kind of a family!”
What would truly make us not one of ‘those’ families is if we start to check our everyday responses to gender inequalities and discrimination. Unless we stop calling street harassment ‘eve teasing;’ stop worrying about protecting our girls’ reputations even at the costs of their safety; stop spending more time, money and energy on weddings than on talking about healthy relationships and marriages, we will not stop domestic violence. Only when three friends can walk with safety as well as the security of the knowledge that they will not be judged should they face harm by someone, whether on the street or in the home, can we begin to feel assured that we are progressing towards equal justice for all.
Cycle of Power and Control
Intimate partner violence or domestic violence (DV) is controlling, abusive, and aggressive behavior in an intimate relationship . It includes verbal, emotional, physical, and/or sexual abuse.
DV usually comes to public notice only in extreme cases of physical abuse.
However, behind closed doors, such violence typically follows a regular pattern of three phases that repeat themselves:
One, the ‘tension-building’ phase. The abuser becomes increasingly irritable, moody, impatient, resulting in his partner “walking on eggshells,” not knowing what might make the abuser more angry.
Two, the ‘acute’ phase. There is some sort of explosion and violence that may be verbal, physical, and/or sexual.
Third, the ‘honeymoon’ phase. There is calm again. The abuser may apologise or pretend like nothing happened and may bring flowers and chocolates. The partner starts to feel relief. That is till the ‘tension-building’ phase begins again.
There is thus a clear difference between common, everyday disputes between couples and domestic violence.
Three things to tell someone who is facing such violence: I believe you / You are not alone /You have options
The writer is a lawyer who focuses on gender and minority issues in the United States and South Asia.
The Supreme Court has ruled that in rape cases there is no need for corroboration and conviction can be imposed on the sole statement of the victim. A bench of justices P Sathasivam and B S Chauhan said that the victims testimony cannot be looked at with suspicion. Supreme court adeed that it is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The Prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Hence, the victims evidence need not be tested with the same amount of suspicion as that of an accomplice. The bench dismissed an appeal filed by Mohd Imran Khan and Jamal Ahmed challenging their conviction for rape of a minor girl about 22 years ago. The defence had argued the victim’s statement cannot be relied upon as she had eloped with the accused.
In 2009, the court had ruled the same when awarding rigorous life imprisonment to convict Raju, a resident of east Delhi for raping his five-year-old neighbour. The apex court had ruled that the evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent, is even more reliable. Evidence Act does not says that victims evidence cannot be accepted unless it is corroborated in material particulars. The court had also ruled that a victim is undoubtedly a competent witness under Section 118. However, courts also say that if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.
Errors in Age Verification
The medical report and the deposition of the Radiologist cannot predict the exact date of birth, rather it gives an idea with a long margin of 1 to 2 years on either side.
In Jaya Mala v. Home Secretary, Government of J & K & Ors., AIR 1982 SC 1297, this Court held:
However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.
(See also: Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh & Anr., (2009) 6 SCC 681; and State of Uttar Pradesh v. Chhotey Lal, (2011) 2 SCC 550)
It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called `Evidence Act’), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim.
The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658; State of U.P. v. Pappu @Yunus & Anr. AIR 2005 SC 1248; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191). Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.
The Trial Court came to the conclusion that there was no reason to disbelieve the prosecutrix, as no self-respecting girl would level a false charge of rape against anyone by staking her own honour. The evidence of rape stood fully corroborated by the medical evidence. The MLC of the prosecutrix Ext.PW2/A was duly supported by Dr. Reeta Rastogi (PW.2). This view of the Trial Court stands fortified by the judgment of this Court in State of Punjab v. Gurmit Singh & Ors. AIR 1996 SC 1393, wherein this Court observed that the courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her.
It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked at by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracised by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward-looking as the western countries are.
Much reliance has been placed by learned counsel for the appellants on the judgment of this Court in Javed Masood & Anr. v. State of Rajasthan, (2010) 3 SCC 538, wherein it had been held that in case the prosecution witness makes a statement and is not declared hostile, he is supposed to speak the truth and his statement is to be believed.
It is in view of this fact in the instant case that Puran Singh, I.O. (PW.15) has deposed in the court that the birth certificate of the prosecutrix did not relate to the prosecutrix. I did not verify about the birth certificate from the NDMC. I do not remember if at the time of bail application I had submitted that the birth certificate is genuine but does not relate to prosecutrix.
Thus, the question does arise as to what extent the court is under an obligation to accept the statement of Puran Singh, I.O. (PW.15) particularly in view of the birth certificate available on the record. In view of our finding in respect of the date of birth we are of the view that Puran Singh, I.O. (PW.15) unfortunately made an attempt to help the accused/appellants, though in the examination-in- chief the witness has deposed that the Birth Certificate providing the date of birth as 2.9.1974 was genuine.
Be that as it may, by now Puran Singh (PW.15) might have retired as the incident itself occurred 22 years ago. Therefore, we do not want to say anything further in respect of his conduct.
In State of Karnataka v. K. Yarappa Reddy, AIR 2000 SC 185, this Court while dealing with a similar issue held:It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer’s suspicious role in the case.
The investigation into a criminal offence must be free from all objectionable features or infirmities which may legitimately lead to a grievance to either of the parties that the investigation was unfair or had been carried out with an ulterior motive which had an adverse impact on the case of either of the parties. Investigating Officer is supposed to investigate an offence avoiding any kind of mischief or harassment to either of the party. He has to be fair and conscious so as to rule out any possibility of bias or impartial conduct so that any kind of suspicion to his conduct may be dispelled and the ethical conduct is absolutely essential for investigative professionalism. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth. (Vide: Jamuna Chaudhary & Ors. v. State of Bihar, AIR 1974 SC 1822; State of Bihar & Anr. etc. etc. v. P.P. Sharma & Anr., AIR 1991 SC 1 1260; and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 254)
Shri Amrendra Sharan, learned senior counsel has placed reliance on the judgment of this Court in Baldev Singh & Ors. v. State of Punjab, AIR 2011 SC 1231, wherein the convicts of gang rape had been sentenced to 10 years RI and a fine of Rs.1000/- each had been imposed and served about more than 3 years imprisonment and incident had been very old, this Court in the facts and circumstances of the case reduced the sentence as undergone, directing the appellants therein to pay a sum of Rs.50,000/- of fine to be paid to the victim and prayed for some relief.
The High Court after taking into consideration all the circumstances including that the incident took place in 1989; the appeal before it was pending for more than 10 years; the prosecutrix had willingly accompanied the appellants to Meerut and stayed with them in the hotel; and she was more than 15 years of age when she eloped with the appellants and the appellants were young boys, reduced the sentence to 5 years which was less than the minimum prescribed sentence for the offence. As the High Court itself has awarded the sentence less than the minimum sentence prescribed for the offence recording special reasons, we do not think it to be a fit case to reduce the sentence further in a proved case of rape of a minor. The appeals lack merit and are, accordingly, dismissed.
The rhetoric on remedies of rape moves in circles – from capital punishment for rape to financial compensation to the victims to out of court ‘settlements’ to getting the victim married with the culprit. The woman’s need for dignity of course takes the back seat.
Despite an uninterrupted discourse on the subject over the past several decades, governments and society are yet to evolve a cast-iron system to deal with the crime and the criminals.
From the year (1971) the National Crime Record Bureau (NCRB) began collecting data on rape cases, it has shown an eight-fold increase. In 2008 over 21 thousand complaints were recorded in the country with various agencies conceding that over 80 per cent of the cases never get reported. Incest has shown a 30 per cent increase— these are disturbing social trends, which need to be researched and addressed. This stands in marked contrast to the other serious and violent crimes like murder, robbery, dacoity, kidnapping and rioting.
The NCRB has also concluded that only one in 69 rape cases get reported and only 20 per cent of the reported cases result in convictions.
Cash compensation ?
Compensation for rape is not a new idea. Courts have ordered for compensation to be paid under provisions contained in the statutes. Several state governments too have found it convenient to pay sums depending upon the extent of the public outrage and media exposure. But this is the first time the Ministry of Women and Child Welfare has launched a country-wide scheme and has offered to reimburse the state governments the cost they incur in its implementation.
But compensation — call it restorative justice or whatever —is tricky.
It is instructive to recall the experience with Prevention of Atrocities Act 1989 ( for SC and ST). Tribal and dalit victims of rape, were required to produce a certificate of their tribal/dalit status for receiving a compensation of Rs 25,000.
Getting the certificate in itself became a profit making proposition for brokers. Poverty also induced many to file false cases, thus defeating the well-meaning provision, points out Pratiksha Baxi from JNU.
The law also appears to assume unfortunately that standards of dignity are different for a woman from a well- off family and for a dalit woman. So, a dalit woman’s compensation money for rape can be shared by the rapist under the Act.
The compensation is paid if the victim belongs to either a Scheduled Caste or a Scheduled Tribe and the rapist does not. The law does not specify what happens if the woman is from a Scheduled Tribe and the man is from a Scheduled Caste or vice versa. Even before the Act was passed in 1989, since 1978 in UP women from SC and ST were paid compensation of Rs 5000 for rape.
The website of the Department of Social Justice and Empowerment, Govt of Gujarat, lays down that for outraging the modesty of a woman under section 3(1) (11) the Government pays a compensation of Rs 50,000, but in case the accused marries the rape victim, the ‘assistance’ ( here it is not termed as compensation) of Rs 50,000 is disbursed in the joint names of the couple.
It does not require great imagination to understand how these laws end up as bait for attracting more abuse for women. The website does not offer any data on how many women actually received the compensation or assistance!
Compensation, obviously, can be paid only after the charge is established in court, which is a tall order in itself. Strangely, the scheme is sought to be justified by the need to help the victim financially so that she can fight it out in court. How this contradiction gets resolved , remains to be seen.
A study conducted by MARG in Uttar Pradesh throws up more questions.
Of the 33 registered victims or their family members the researchers spoke to, they found 13 victims were minors, 2 were six years old, one was between four and five years of age. One was 12 years old, others less than 14 years of age.
But in only four cases did the medical report confirm rape. Of the 13 minor victims, only one minor’s rape was confirmed. Two girls had the noting ‘no opinion’ and of the rest there was no medical record with the police. Yet, the compensation was ‘liberally’ sanctioned.
Although the police had no ‘medical examination report’ in their record, compensation was still sanctioned in as many as 28 cases, including nine in which there was no finding of rape. In one case the rapist and victim belonged to the same caste, hence the case was withdrawn!
The money, in case of minor victims, was received by the parents. Only two women spent Rs 2000 out of the received money to hire a lawyer.
Of the 13 minors, only four could attend school while most victims relocated to escape the stigma attached to rape. Their humiliation was compounded by the CM of U P, Mayawati , who had ordered the money to be delivered by the Director General of Police in person. He was also asked to take a helicopter and fly to various places for the purpose.
On the one hand rape cases are held in camera, on the other hand this display of ‘help’ discourages victims to report rape. The compensation, as and when paid, is often grabbed by the rest of the family, and makes the police indifferent and even more reluctant to pursue the cases. The attitude is, since the money has already been paid, why fuss over prosecution ?
In most countries, policies and laws are framed based on research based findings. But there are very few studies on the subject funded by the Government.
A few studies, mostly done by individuals who feel strongly about the issue, are however eye openers. Social activist Flavia Agnes’ study was based on observations drawn from her own legal practice and judgements involving rape cases; while Pratiksha Baxi’s ( Assistant Professor, Centre for Law and Governance, JNU, Delhi) study was based on what goes on inside the court rooms, where a 12- year- old is also asked sexually explicit questions a lawyer may hesitate putting to a 30- year-old.
Even after the much talked about Mathura case, which led to the amendment of Evidence Act in 1983, which allowed the woman’s word to be trusted for her non-consent, there has been no monitoring of judgements.
From 1860 to 2002, the colonial law based on the moral history of the woman was in application while looking at a rape victim, which meant that a woman’s sexual history would have a say on the writing of the verdict. Despite deletion of this clause, not much has changed in courtrooms.
A Google search for kanoon.com and rape cases will throw up several judgements, which are deeply patriarchal and explain why conviction rates are so abysmally low.
Doctors are surprised if the victim cooperates with them on examination (a victim is supposed to go stone-silent, weep and should have injury marks), policemen’s wives cannot complain of being raped by husbands ( because it is a husband’s right) and while the defence tries to prove that the victim is a consenting adult because anyone over 16 is thought to have given consent, judges worry about marital prospects of victims ( many rapists thus get lighter sentences when
they agree to marry their victims). Incest of course hardly ever gets reported because of the family’s insistence on silence.
Marry the rapist
Sakshi, an NGO, had released a study called ‘Gender and Judges’, in which it analysed the views of 119 judges from all over India, along with experiences of female lawyers, complainants and observations on court room trials.
Most judges found it impossible to believe that men could perpetrate the crime without any element of consent or provocation. ‘Judges were of the view that penetration of a woman is physically impossible without her ‘consent’ and that in any case women are ‘partially to blame for such abuse.’
Another ludicrous idea often encouraged by the judiciary is that of compromise. Whenever witnesses turn hostile, victims are advised to accept a compromise, which the court witnesses, but is unable and unwilling to act upon.
The court thus ‘restores’ her chastity in the public eye. Fortunately, the courts are prohibited from compounding a rape case. Being a non-compoundable offence, compromise in rape cases has been confined to the bargains between community elders, victims’ kin, local authorities and the police, with judges looking the other way for the most part.
Women are often subjugated by men in power. In the Ruchika Girhotra molestation case, the protector, an IG, Haryana Police, S P Rathore became the tormentor. After 19 years, 40 adjournments, and more than 400 hearings, the court finally pronounced him guilty under Section 354 and gave him six months imprisonment.
In case of Anjana Mishra, it was the Advocate General of Orissa, Indrajit Roy, who attempted to rape her when she went to seek his help for getting custody of her children in 1998. Since she dared to report the case, she was gang-raped by three men, to teach her a ‘lesson.’ Roy was given anticipatory bail but was never arrested due to his political clout. Under public pressure when he finally resigned, his junior was made AG, putting Anjana in her place.
It is reminiscent of Bhanwri Devi’s case, a Sathin volunteer in Rajasthan, when she tried to stop a child marriage in 1992, she was gang raped by five men, including Ramkaran Gujjar, whose daughter’s marriage she had tried to stop. The male doctor at the primary health centre refused to conduct medical examination and at a Jaipur hospital the doctor certified only her age. Subjected to sustained humiliation, she was asked by the policemen to leave her lehenga as an evidence of rape. Bhanwri’s case inspired Visakha case, which brought about legislation against sexual exploitation of women at work place but Bhanwri could not get justice in a caste -ridden system.
Society must change first
I enacted the role of a rape victim in three films; Bawandar, Pitah and Laal Salaam. So, I can claim to have some idea of what a woman goes through in a situation like gang- rape. While shooting the gang-rape scene for Bawandar, I saw some members of the crew nudging each other with suppressed and suggestive giggles, and I screamed. It was something I never do. But I felt violated. This was just an enactment, after all. I could immediately empathise with what an actual victim has to go through.
It is sad the way we treat this kind of abuse of women—with total disregard for the feelings of a woman. The society has to change—this is not something outside us, they come from within us. We need to shame the perpetrators, we need to talk more and more—in the open about these issues because, as we know, a rapist gets caught usually after a number of successful or unsuccessful attempts. What makes the rapist so daring is the silence of the women.
As far as monetary compensation is concerned, it finds justification in offering help to the victim to fight her case legally, which is often long-drawn. Otherwise it becomes like the flesh-trade. One must understand that the person is scarred for the rest of her life, simply because we have shrouded a crime under such weight of shame for so long that we do not want to deal with it.
What’s wrong if state takes responsibility?
There was a time when, after the Bhawnri Devi case, women’s groups demanded compensation, because Bhawnri was raped in the course of carrying out her duties as a government functionary, albeit an informal one (she was paid not as an employee but as a volunteer, something that enables the govt. to pay less than the minimum wage); therefore she was entitled to compensation. She was eventually given compensation but she did not use it, it created more problems for her— the community started saying rape was an excuse for taking money… so there is that element also. But if the state takes responsibility, then that can’t be altogether a bad thing
Rape, a widespread crime against women, shows little signs of abating. The unbearable trauma that a rape victim has to bear is further compounded by the insensitive laws and the “couldn’t care less” attitude of the law-enforcing machinery. Until rapists are dealt with severely, the offence will continue to breed and grow.
Shree Venkatram in THE TRIBUNE
Rape is one of the most heinous crimes, impacting the victim for life. Given its enormity, it should be considered next only to murder. Sadly, it has not been given the attention it needs by social scientists, law makers and justice dispensers. When two Class IX boys attempt to rape a Class I girl, as in a Bathinda school recently, it is time society introspected. What kind of signals are we sending out to our young?
The National Crime Records Bureau had termed rape “India’s fastest growing crime”. We have complete figures for 2009, when according to the NCRB, a total of 21,397 rape incidents were reported countrywide. Add to this, 25,741 cases of kidnapping and abduction of women and 38,711 cases of molestation, and you get 235 reported cases of molestation/rape/ abduction of women every day. These are just the reported cases. Most, especially molestation and rape cases, go unreported in the name of guarding ‘family honour’.
Convoluted sense of justice
Let us examine some recent sentences proclaimed by our justice dispensers and the messages these have sent out to society. A few months ago the Supreme Court decided to let off three farmers, who had been convicted of gang raping a woman in Ludhiana district. A sessions court had awarded a 10-year imprisonment to them. The Punjab and Haryana High Court had upheld their conviction, following which, the criminals appealed to the Supreme Court. Their sentence was cut short after a few years under a “compromise formula” that entailed paying Rs 50,000 each to the victim.
The rapists had appealed to be let off as “they and the victim were happily married to their spouses” and “wanted to live peacefully”. The fact that the victim is “happily married” is no credit to the rapists. Did the judges ascertain the happiness quotient of the criminals’ marriages? Did they speak to their wives? Men who rape, make for draconian and violent husbands. As far as “wanting to live peacefully is concerned”, it is easy to say that after committing a violent crime. The fact that they can indulge in rape makes them dangerous criminals. If they could do that to one woman, they can inflict themselves on another. How does the court ensure that this does not happen? The National Council for Women has asked for a review of the case for it sets a bad precedence of reaching a compromise in rape cases, where conviction rates are extremely low anyway.
Wrong signals embolden rapists
It is not surprising that such a judgement should come from our highest court. The former Chief Justice of India, K G Balakrishnan, is reported to have said that society and the state must respect the decision of a rape victim if she chooses to marry the rapist. His words as reported by a newspaper: “Due regard must be given to their personal autonomy since in some cases victims may choose to marry the perpetrator.” Imagine the trauma of a woman having to spend her life with a man who has raped her? It is like inflicting a lifelong sentence of mental and physical cruelty on her, while the man goes scot free. And then, what would prevent the rapist from marrying the victim to escape punishment and then deserting her? This kind of a mindset furthers the warped view society holds that marriage is the be all and end all for a woman. And that it is better to marry a man who has raped you than not marry at all!
Now look at the punishment a panchayat in Ghaziabad meted out to an rapist uncle: It ruled that five smacks with a shoe was enough punishment for raping his niece. In another case, also in Ghaziabad, a five-year-old was raped by her 19-year-old cousin. But the family chose to keep quiet, not even getting medical attention for the little girl.
She was sent to school the next day where she complained of abdominal pain and died. It was only then that the parents approached the police. The girl’s mother said she had raised an alarm when she saw the cousin raping the child. The family elders had caught him, slapped him and let him off. Consider now how these family elders and panchayats handle youngsters who marry outside their caste group or marry within their own gotra. The punishment has ranged from social ostracism to even death! Obviously, rape is considered a minor crime compared to violation of caste and kinship lines.
Compounding victims’ trauma
The law as it stands today is weak and archaic. Apart from woefully inadequate sentences, it only recognises vaginal rape and does not believe that children below 12 can be raped. Women’s groups have been demanding its amendment but though decades have passed, the bill is still in a draft stage.
The Aruna Shanbaug case illustrates the complete warpedness of our justice system. While Aruna, the nurse who was raped and maimed for life has been lying in a hospital bed for the last 37 years, the rapist, ward boy Sohanlal Walmiki, is a free man today. He is said to have changed his name, moved to Delhi with his family where he works in a hospital. He was imprisoned for only seven years for attacking her and stealing her jewellery, but not for rape as it was anal and not vaginal rape he indulged in as Aruna was menstruating at that time. What kind of justice is this?
The death penalty awarded to rapist and murderer Santosh Kumar Singh was commuted to a life sentence because of what is termed as “mitigating circumstances”. Among them were that he was “young, just 24 years old” at the time of his crime. At 24 years, one is an adult! The fact that he was “married” and “the father of a girl child” were the other “mitigating” factors. Now, how does this help either the wife or the daughter? They have to fend for themselves anyway and live with the knowledge of having a rapist and murderer as a husband and father for the rest of their lives. In fact, the law should give the wife and children of a rapist the choice to walk off from the relationship with no legal binding on their part, while retaining all their rights on the family property. If the wife has the option of being legally freed of the relationship, she can think of starting her life again. It is extremely traumatic for a young girl to grow up knowing her father is a rapist. In fact, such men are best kept away from their daughters.
We have also had judgments where the sentence was commuted when the rapist passed a civil services exam. What is the message that went out? That if you pass the exam, all will be forgiven and you will occupy an important government post. In fact, the opposite should be the case. Convicted rapists who have served their term in jail should be debarred from holding a government job.
Need for unorthodox methods
The law must acknowledge that rape mars a person for life. The condition has been recognised as Rape Trauma Syndrome where the victim suffers from phobias and nightmares and feels emotionally crippled, unable to form meaningful relationships and friendships for life.
Kamini Lau, Delhi’s additional sessions judge, recently called for a public debate on “chemical and surgical castration” of child rapists and serial offenders as an alternative punishment. She said this while delivering a sentence for a man who raped his minor step daughter for four years.
Chemical castration is being used in parts of United States and many European countries, with the rapist’s consent. Sweden, France and Germany are among them. In Poland it is mandatory. A province in Argentina is the latest to adopt it. It involves an injection of an anti-pregnancy drug every three months to lower libido and uncontrolled sexual impulses. There is much evidence in the medical and psychiatric world that a rapist cannot be cured unless there is a medical intervention. It is time to act. There can be no compromises with a rapist.