Review of Rape Law

Dignity is her birthright

Dignity is her birthright

NATIONAL LAW RESEARCH DESK

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

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

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

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

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

RAPE LAWS RECOMMENDATION NCW

172LAW COMMISSION REPORT ON REVIEW OF RAPE LAW

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Court’s rider and relief for rape victims

By Naziya Alvi in New Delhi IN MAIL TODAY

A DAY AFTER five rape cases were reported within a span of 48 hours in the Capital, the ministry of women and child development came up with a scheme to compensate the victims by providing them financial assistance up to ` 3 lakh.The scheme was announced after the Delhi High Court rapped the central and the state governments for the delay in setting up a compensation scheme for rape victims. The court ordered the implementation of the scheme within the next six weeks.

Under the scheme, if a rape case is prima facie made out, the victim will receive an interim financial assistance of ` 20, 000 within 15 days. After giving due consideration to the physical injury and emotional trauma faced by the victim, she will be provided with further financial aid up to ` 50,000.

However, in view of the rampant trend of rape victims turning hostile or going missing after lodging the FIR, the major chunk of the compensation amount— ` 1.30 lakh — will be handed over to the victim only after she makes the final deposition before the court.

The scheme has fixed the compensation amount for victims at ` 2 lakh, but can it be enhanced up to ` 3 lakh if the victim is a minor, differently- abled, mentally challenged or in any other case where the designated authority finds it necessary.

The scheme, prepared with the assistance of NGOs, lawyers and activists, aims at providing psychological, medical and legal assistance to the affected woman. It also has the provision to provide counselling support to the victim, including her spouse if the affected woman is married.

Depending upon their needs, the victims will also be provided various support services such as educational and vocational training so as to help them overcome the trauma and lead an independent life.

A Criminal Injuries Relief and Rehabilitation Board will be set up at the district, state and national level for the implementation of the scheme. The announcement of the scheme on Wednesday evoked mixed responses from social activists, lawyers and academicians.

“ I think it will lead to so much ugliness. My concern is that the government promises a lot but its delivery mechanism is so poor that everything becomes either a farce or a source of corruption,” social activist Madhu Kishwar said.

“ What a woman needs more than anything else is swift, speedy and dignified judicial process and a police station that works lawfully. What is most worrisome is how they will ensure that the compensation reaches the victim,” she added.

“ The Supreme Court, while pronouncing the judgment in the Delhi Domestic Workers Association case in the early 90s, had directed the government to formulate a similar scheme.

They should have ideally done it within a year. The fact that they have not done it till date shows the intent and prioritisation of the government and the bureaucrats towards women’s issues,” Meenakshi Lekhi, a Delhibased advocate, said.

Yasmeen Abrar, chairperson of the National Commission for Women, said she was happy that the government finally came up with such a scheme. “ However, we feel that ` 2 lakh is not a sufficient amount and should be increased to at least ` 5 lakh,” Abrar said. But for some, the scheme is just an eyewash. “ Compensation is meaningless so long as the guilty are not punished.

Rape is not an accident where a money claim will heal the wounds,” a rape victim said.

INTERIM ASSISTANCE

20,000 will be given to the victim in the event a rape case is prima facie made out. The district board shall order the assistance as far as possible within 15 days and, in any case, not later than 3 weeks from the date of receipt of the application ` 50,000 is the maximum amount the victim will receive as further aid after giving due consideration to the physical injury and emotional trauma faced by her

FINAL ASSISTANCE

1.3 lakh will be given to the victim as final assistance within one month from the date on which the victim gives her evidence in the criminal trial or within one year from the date of receipt of the application in cases where the recording of evidence has been unduly delayed for reasons beyond her control

ENHANCEMENT OF AID IN SPECIAL CASES

3 lakh is the enhanced compensation an affected woman will be entitled to if she

  • is a minor
  • is mentally challenged or differently abled
  • is infected with STD, including HIV/ AIDS as a consequence of rape
  • gets pregnant
  • in case of severe physical and mental ailments
  • any other ground as may be deemed fit by the board

WHEN CAN THE BOARD REJECT THE CLAIM?

  • Avictim’s claim can be rejected under the following circumstances
  • she fails to inform, without delay, the police or any other appropriate authority about the incident
  • she fails to give reasonable assistance to the board in connection with the application
  • the FIR is filed so late that it is difficult to verify the facts of the case
  • she turns hostile during the trial
  • the case appears to be collusive in nature
  • bona fides of the victim are suspect, such as in a case involving solicitation, and not based on verifiable facts
  • case is of elopement of girls above 16 years of age

WHO MAY APPLY AND BY WHEN?

An application for financial assistance and support services has to be filed within 60 days from the date of recording of the FIR either by the victim or by any person/ organisation/ department/ commission on her behalf, with the application duly signed by her

WHERE THE AFFECTED WOMAN IS:

A minor: By her parent/ guardian . Mentally ill or is mentally challenged: By the person with whom she normally resides or a duly authorised medical officer of the institution

ON THE DEATH OF THE AFFECTED WOMAN:

by her legal heir( s) . Where the application is filed after 60 days, the board may condone such delay where it is satisfied with the reasons for the same.

http://epaper.mailtoday.in/epaperhome.aspx?issue=772011

Promise to women

Sexual Harassment (The Office)

Image via Wikipedia

T K RAJYALAKSHMI IN THE FRONTLINE

ON November 4, the Union Cabinet gave the go-ahead for the enactment of a law on protection of women from sexual harassment at the workplace. Titled Protection of Women against Sexual Harassment at Workplace Bill, 2010, the draft law is basically a new avatar of the ones prepared in 2004. This development has been pending for long considering the fact that the Supreme Court laid down as early as 1997 certain guidelines to prevent the sexual harassment of women at their workplaces, in its landmark judgment delivered in Vishaka vs the State of Rajasthan and others.

Vishaka, a non-governmental organisation working for gender equality, had filed a writ petition seeking the upholding of the fundamental rights of working women under Article 21 of the Constitution. The immediate reason for the petition was the gang rape of a saathin (a social worker involved in women’s development programmes) of Rajasthan in 1992.

The assault was an act of revenge as the saathin had intervened to prevent a child marriage. The accused were acquitted by the trial court. However, following a hue and cry raised by women’s organisations, the High Court stayed the acquittal.

While some government departments, Ministries, universities and even a small section of the media set up complaints committees as stipulated by the apex court, the private and unorganised sectors did not make much headway in this regard.

Although the Cabinet has cleared the decks for the presentation of the Bill in the ongoing winter session of Parliament, it is quite possible that the introduction of the Bill may be delayed by the din created by the 2G spectrum scam. Women’s organisations feel that the delay may help as the time lag can be used to address certain defects in the Bill. One redeeming feature of the proposed Bill is that women can, at least on paper, look forward to a more decent and secure workplace environment and the employer is liable to pay a fine of Rs.50,000 if he fails to comply with the provisions.

DEFINITION

The definition of sexual harassment in the Bill broadly follows the one expounded by the Supreme Court in 1997. It includes any physical contact and advances or demand or request for sexual favour, unwelcome sexually coloured remarks or gestures, showing pornography or any other unwelcome physical, verbal or non-verbal contact of sexual nature. It recognises the promise of or threat to a woman’s employment prospects or creation of hostile work environment as sexual harassment at the workplace and expressly seeks to prohibit such acts. It provides protection not only to women who are employed but also to those who enter a workplace as clients, customers, apprentices and daily wage workers, or who are employed in an ad hoc capacity.

The deficiencies in the Bill are significant, and women’s organisations have expressed concern over the non-inclusion of certain categories of the female workforce.

First, although the Bill is comprehensive in its definition, it excludes domestic workers from its ambit. The draft Bills prepared painstakingly by the National Commission for Women and the Ministry of Women and Child Development (MoWCD) in collaboration with women’s organisations had included domestic workers in the definition of “employee”.

According to the earlier drafts, an employee was defined as one “employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or by or through an agent, including a contractor, with or without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a domestic worker, a co-worker, a contract worker, probationer, trainee, apprentice or by any other name called”.

NEW CLAUSE

A new clause in the Bill brings students, research scholars in colleges/universities, patients in hospitals and women in the unorganised sector under its purview but leaves out domestic workers. Most of these features were present in the draft Bills of the NCW and the MoWCD. The NCW’s latest version of the draft Bill, evolved in January 2010, widened the scope to include research scholars and students and like the draft prepared by the Department of Women and Child Development (before it became a full-fledged Ministry), domestic workers were covered in the definition of employee. Workplace, therefore, included “home or dwelling place”.

Even the definition of sexual harassment has undergone some change. While the Bill draws on the definition provided in the Supreme Court guidelines, wherein sexual harassment was defined to include “unwelcome sexually determined behaviour, physical contact, sexually coloured remarks, showing pornography, request for sexual favours or any other unwelcome conduct, whether verbal, textual, physical, graphic, electronic or any other action, not limited to, implied or overt promise of preferential treatment, implied or overt threat of detrimental treatment or threat about present/future employment status, conduct which interferes with work, or creates an intimidating or hostile work environment”, it has excluded humiliating conduct that could constitute a health and safety concern to the woman.

Curiously, the Bill also provides for safeguards against malicious complaints of sexual harassment but with the caveat that a mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment.

Reacting to this aspect, the All India Democratic Women’s Association (AIDWA), which has welcomed the Union government’s decision to introduce such a Bill, stated that the inclusion of the feature providing punishment for malicious complaints went totally against the Vishaka judgment, which had clearly stated that no action should be taken against a woman for making a complaint. The entire idea of a civil law to deal with cases of sexual harassment, it held, was meant to provide an atmosphere that helped women victims to make complaints, as aggrieved women employees were usually hesitant to lodge complaints, fearing reprisals. AIDWA said that in its experience of dealing with cases of sexual harassment at the workplace, it had found that accusations of false complaints were routinely made against the women victims. The organisation has, therefore, demanded that the clause pertaining to punishments to women for false complaints should be removed.

The Bill provides for a “complaints and redress mechanism”, more or less on the lines of the previous drafts, but it has some flaws. The redress mechanism requires every employer to constitute an internal complaints committee which is to be headed by a woman and has women constituting 50 per cent of its members.

As a large number of establishments (41.2 million of the 41.83 million) in the country have fewer than 10 women workers on their rolls, it will not be feasible to set up a complaints committee in each of them. Hence, the Bill provides for the constitution of local complaints committees by the designated district officer at the district or sub-district level. The idea is to ensure that every woman in any workplace, irrespective of its size or nature, will have access to an effective redress mechanism.

The local committees are expected to inquire into the complaints and recommend action to the employer or the district officer. Fearing the possibility of threat to or aggression against the complainant during the pendency of the enquiry, the Bill entitles the woman to seek interim relief in the form of a transfer, either of her own or for the respondent, or seek leave from work.

A definite time frame has been laid down for the inquiry and disposal of the complaints. The complaints committee is required to complete the inquiry within 90 days and the employer or the district officer has been given 60 days to implement the committee’s recommendations. AIDWA has expressed concern over the discretionary powers given to the district officer in the appointment of the committees. This, it feels, can lead to a certain degree of arbitrariness over the constitution of the committees.

The Bill does not make it clear if the recommendations made by the local committees have to be mandatorily implemented by the employer. AIDWA has demanded clarity on this aspect specifying that no additional inquiries be initiated even as the recommendations for punishment are followed scrupulously. The organisation has also suggested that the Bill include the NCW’s proposal to provide monetary compensation to the victim for the trauma and loss of opportunity suffered by her.

The welcome feature of the proposed Bill is that as the State and Central governments will oversee its implementation, employers are duty-bound to include a report on the number of cases filed and disposed of in their annual report. Organisations that do not prepare annual reports will forward this information to the district officer.

The Bill makes it mandatory for every employer to implement the provisions of law within his/her establishment while the State and Central governments have been made responsible for overseeing and ensuring the implementation of the law.

It is hoped that the Bill will be enacted with the inherent flaws rectified. As far as apprehensions of the misuse of the law are concerned, such a possibility exists with regard to every piece of legislation.

The experience of women’s organisations and people dealing with cases such as these shows that laws pertaining to the safety of women are seldom put to good use.

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NCW to SC: Is it cruelty to threaten divorce?

The National Commission for Women (NCW) wants the Supreme Court to rule on whether a woman can be held liable for cruelty under dowry law if she threatens to “force” her son to take divorce.

“Whether threatening a daughter-in-law that she (the mother-in-law) would force the son to take a divorce not amount to mental cruelty thereby clearly attracting Section 498A (dowry harassment) of the IPC?” the commission has sought a judicial clarification from the apex court. It has further asked the court to decide if “advising” a daughter-in-law to take divorce by mutual consent and inducing her with a monetary compensation amounts to cruelty as defined under Section 498A.

The top women’s body has sought these clarifications in a curative petition filed before a Bench headed by Justice P Sathasivam against a July 27, 2009 Supreme Court judgment.

The National Commission for Women (NCW) wants the Supreme Court to rule on whether a woman can be held liable for cruelty under dowry law if she threatens to “force” her son to take divorce.

“Whether threatening a daughter-in-law that she (the mother-in-law) would force the son to take a divorce not amount to mental cruelty thereby clearly attracting Section 498A (dowry harassment) of the IPC?” the commission has sought a judicial clarification from the apex court. It has further asked the court to decide if “advising” a daughter-in-law to take divorce by mutual consent and inducing her with a monetary compensation amounts to cruelty as defined under Section 498A.

The top women’s body has sought these clarifications in a curative petition filed before a Bench headed by Justice P Sathasivam against a July 27, 2009 Supreme Court judgment.

“In this judgment, this court has held that (a) kicking a daughter-in-law; (b) constantly threatening her that they (in-laws) would convince their son to take divorce does not amount to cruelty as under Section 498A (dowry harassment) of the IPC,” states the NCW petition filed by advocate Aparna Bhat.

The commission said it had, during the “course of its work”, found dowry harassment and domestic violence “more of a norm than an aberration and the law has to be interpreted in a manner beneficial to women in distress”.

The 2009 judgment of Justices S B Sinha and Cyriac Joseph had quashed dowry harassment charges instituted against Bhaskar Lal Sharma and his wife by their daughter-in-law, Monica, who accused them of physically harming her and threatening her with divorce.

Section 498A says it amounts to ‘cruelty’ if a husband or his relative wilfully subjects a woman to actions that may drive her to commit suicide or cause grave injury to herself. A person is liable to undergo a maximum imprisonment of three years if found guilty.

The petition asks the court whether “constantly interfering in the marriage of a newly married couple by advising a daughter-in-law to give divorce, kick her, and criticise her on a regular basis” match the definition of cruelty under Section 498A of the IPC.

India ready to ratify UN convention

The move will allow the government to sign mutual legal assistance agreements with 154 member countries

Sahil Makkar, sahil.m@livemint.com

Eight years after signing the United Nations (UN) convention against transnational organized crime, India is ready to ratify it and bring its laws in line with international standards.

The move will allow the government to sign mutual legal assistance agreements with 154 member-countries as well as put pressure on nations such as Pakistan to assist in efforts to combat money laundering, drugs and arms smuggling and human trafficking. The treaty is the first legally binding instrument that commits members to take collective action against human trafficking—especially of women and children—smuggling of migrants and trafficking of firearms. A senior home ministry official said after signing up in 2002, India had assessed the gap between its laws and those prescribed by the convention.“We sought comments and views of various ministries before putting it before the cabinet. We also visited many countries to review their systems,” the official said. “Earlier, it could not be cleared due to difference in views of all stakeholders. Now the gap analysis is prepared, and it was found that Indian laws sync well with the UN mandated norms,” the official added.

The matter was brought before the cabinet in April. The cabinet will take it up next week, and is likely to clear it, the official said.

A second home ministry official confirmed this, adding: “After the cabinet approval, an Indian delegation led by a minister will visit and submit documents to the UN, which will further process the matter.” Both spoke on condition of anonymity. Pakistan ratified the convention in January. “Pakistan, which has not been very cooperative on the issue of human trafficking, money laundering, drug trafficking and smuggling of illicit firearms, can (now) be held accountable in the UN. Pakistan can be pressurized to cooperate,” the second official said.After ratifying the convention, India will be committed to taking steps against transnational organized crime and adopt new frameworks for extradition, mutual legal assistance and law enforcement cooperation. It will also have to train its officials to implement the new laws, and provide them technical assistance.

“It is a welcome and much-needed step,” said Ravi Kant, a senior Supreme Court lawyer and President of Shakti Vahini, which works against human trafficking. “India will now also adopt international practices related to rehabilitation and relief of human trafficking victims. The much-needed amendments to Immoral Traffic (Prevention) Act, Juvenile Justice Act, Child Labour Act and Bonded Labour Act would also be carried out.” Girija Vyas, president of the National Commission for Women, also welcomed the move.“It will really prove helpful in prevention of human trafficking as India can put pressure on other member-countries,” she said.

http://www.livemint.com/2010/08/22195051/India-ready-to-ratify-UN-conve.html?atype=tp