LAW RESOURCE INDIA

Blind to what, Your Honour?

Posted in COURTS, CRIME AGAINST WOMEN, FUNDAMENTAL RIGHTS, GENDER, HUMAN RIGHTS, JUDICIARY, JUSTICE by NNLRJ INDIA on December 31, 2012

JUSTICEINDIRA JAISINGH IN THE TIMES OF INDIA

Of all the promises made in the Constitution, the most important are the promises of the ‘right to life’, the ‘right to dignity’, the ‘right to personal liberty’ and the ‘right to bodily integrity and health’. However these promises are yet to be redeemed for women. Rape and other forms of sexual assault,domestic violence,dowry death and honour killings — the most brazen violation of these rights — are a real and daily danger for most women.

The cry that has been reverberating in the streets of the capital — and across the country — from a new and younger generation of citizens is: “We want justice”. It is addressed to us judges and lawyers whose primary responsibility is to protect the rights of the people. The women of this country are no longer willing to tolerate the unconscionable delays in the delivery of justice. It is the sacred duty of judges to prevent violence against women in the home; at the work place and on the streets and hold the perpetrators accountable. What is it that stops courts from securing justice for women? Why has the law not been able to convict the accused when it comes to crime against women? The situation is best summed up by a famous Orwellian quote—’ to see what is in front of one’s nose needs a constant struggle’.

To see the lack of judicial will to get justice for victims of gender-based violence, as stemming from a deeply entrenched prejudice and misogyny in the justice delivery system, including the courts and their judges, is an exercise demanding a constant struggle. It is so much in front of our noses that we, women and men included, legitimise the presence of sexism in our lives and carry it to the corridors of the court and into the courtrooms and into judgements.

This is a part of the Indian reality; from the private sphere of the ‘home’ to the public space like places of work; from the open streets to the corridors of courts playing out in the theatres of justice. Today, the belief in equality is not sincerely held at all. On the contrary, the social system, including the judicial system, is built on a hierarchy along caste and gender lines.

It is no secret that violence against women stems from the deeply unequal relationship between the two sexes in private and public life. It is also no secret that this misogyny is deeply rooted in our society, including within the system of administration of justicefrom investigation to trial, to judgment. A high court judge in Orissa in his judgement once famously held, that it was not possible for a man, acting alone, to rape a woman in good health. There you have it, the distinction between “legitimate” rape and ” illegitimate” rape (to borrow from the infamous comment by Todd Akin) coming from a high court judge.

This is the same thing you hear so often from judges that “women are misusing the law.” They decide what is the legitimate use of the law for women, based on a deeply sexist view of how a woman should behave; what she should desire and how much violence she should tolerate. A casual glance at the kinds of questions a woman is asked in any prosecution of gender- based violence or a reading of judgments of the court will reaffirm this view. On one occasion when a woman lawyer asked for an adjournment, a district judge said, ” I know how you women lawyers make it”. He was rewarded by being appointed to the high court.

Sexual violence against women is unique as it begins in the home and moves out to public places. The problem begins with the assumed consent that women give to sexual intercourse within a marriage. Rape by a man of his wife without her consent is not an offence. Since this is a settled norm, it matters little whether forcible sexual intercourse is with the wife or a stranger on the street. With this accepted culture of rape within marriage standing tall, we have little hope of changing the culture of violence against women anywhere. The assumed consent of a woman to sexual intercourse becomes ingrained in the psyche of a man — as a husband, a son, a brother and this psyche continues into public spaces. Thus it is imperative to recognise that non-consensual sexual intercourse is unacceptable regardless of whether it is with a wife or a stranger, if we want sexual violence against women to stop. A legal culture that creates ‘legitimate and ‘illegitimate’ violence needs to change.

It is heartening to see for the first time, a large number of men on the streets protesting against sexual abuse of women. It is a new generation which brings hope that the tendency for violence against women is about to end as men of future generations will not tolerate such violence.

Lack of adequate number of judges or excessive workload is no longer an acceptable excuse to the women of this country for delaying judicial decisions. They know that it is the abuse of the process of law by vested interests and the utter indifference to women who have been sexually abused, that cause delays, not lack of infrastructure. An approximately 40% increase in the number of judges between 2005 and 2012, has not produced a corresponding decline in the pendency of cases. Justice does not reside in the brick and mortar courtrooms but in the heart and soul of judges and lawyers who represent victims of injustice. Any judge worth the name knows how to prevent delays and an abuse of the process of law by the rich and the famous.

The first duty of judges is to give cases of sexual assault priority and deal with them expeditiously with zero tolerance for delay. The demand for fast track courts is a metaphor for the intolerance of a dysfunctional legal system. While dedicated courts may go some way in dealing with the issue of delays, they will have to be accompanied by support structures, which enable a fair investigation and prosecution.

Women are conspicuous by their absence from the courts as lawyers and as judges. On the other hand, our law schools have at least 50% women students. Yet due to the patriarchy embedded in the judiciary and the legal system, the number of women lawyers and judges is negligible. Even those who manage to penetrate the highly patriarchal framework are discriminated against in terms of appointments, designation as seniors and promotions. Women are constantly under the microscope being pushed to prove themselves while male lawyers need pass no test of competence. The old boys network effectively keeps women out of the span of all zones of influence.

All talk of increasing the penalty for rapists to death is hollow. As the law stands today, a m a n fo u n d guilty of rape can be given a life sentence, And yet in my entire career as a lawyer spanning over 40 years, I have yet to see a single case in which a life sentence has been meted out to a rapist, what then to talk of the death penalty! This calls for urgent action plan by the Chief Justice of India and the chief justices of all high courts to raise as fast as possible the number of women judges in our courts. A few years ago, a woman who I represented in a classic case of sexual harassment, once asked me why her appeal was not being listed before a woman judge in the Supreme Court. My answer was simple, “because there is no woman judge in the Supreme Court.” At this she expressed her amazement and asked, if the Supreme Court could mandate that the chairperson of a sexual harassment committee which was to be set up by employers must be a woman, how come that law does not apply to the court itself ? I had no answer.

A critical mass of women in the judicial system and in the prosecution will inspire confidence in the system for women. The world over, this is known to happen. Women today have no stake in the judicial system and this is reflected in the cry “We want justice”.

A demand for accountability of institutions of justice delivery, the police and the courts must accompany the demand for appropriate laws. Accountability of the police must start with a complaints procedure within the police service itself where a complaint can be lodged for non-performance of duties. A clear command responsibility must be articulated within this mechanism so that in case of non-performance of duties by a junior, the senior officer is held liable. When a pattern of non-performance emerges, leading to a permanent sense of insecurity in which women live, the accountability must be that of the head of the police, and of the political establishment. Confidence in the administration can only be restored by measurable action against people in positions of power.

The judiciary has long been a selfregulating, self- appointing institution. We need a transparent method of appointment of judges where the antecedents of the proposed appointee can be publicly scrutinised. Accountability of the legal system must carry with it, accountability of judges. We need an official mechanism for monitoring the performance of the judiciary to check how content of their judgements meet the constitutional goals of equality. We need independent special rapporteurs drawn from civil society to report directly to Parliament on the performance of the legal system, the judicial system and the police system and violence against women.

It is time for standards to be put in place as to how judges must behave with women lawyers and litigants. The language of the law must be sanitized of all its male chauvinist content. No judge, let alone a Supreme Court judge must ever be allowed to use sexist language in judgements or during the course of arguments in court. Accountability starts at the top with the Supreme Court, what a judge of the Supreme Court thinks and says today, will be said and done by the 17,000 subordinate court judges who deliver justice under the supervision of the high courts.

We need a protocol on how judges ought to behave with women in courts and how they should address women’s issues in their judgements. Gender sensitive language must reflect in judgements dealing with women. This is not a matter of form but of substance. Changing culture and mindsets often requires language to change and rules and regulations, which reflect the change and do not permit a fall from standards. This is the time when the Chief Justice of India must rise to the occasion and speak to the nation and inform us what will be done to restore the confidence of the people in the justice system. Besides his role as a judge, he has a role as the head of the judiciary responsible for the administration of the justice.

The single most important statement we would like to hear from him, is that discrimination against women by judges will not be tolerated; the judiciary will have to exhibit and demonstrate zero tolerance of violence against women in the home, and on the streets.

The goal of law is to sustain life not support its destruction. This is what the 23-year-old was trying to tell us, before she died. “I want to live,” she said, not die of shame. She changed the way society looks at rape — from blaming the victim to focusing on the rapist. All law reform must move in that direction, asking how we can build a new life-sustaining legal culture, a more equal culture, with justice for all. That is the question we must address — with or — without a special session of Parliament.

The writer is Additional Solicitor General of India

INDIRA JAISINGH IN THE TIMES OF INDIA

Supreme Court asks Parliament to revisit dowry-related legislation

Posted in CRIME AGAINST WOMEN, DOMESTIC VIOLENCE, DOWRY by NNLRJ INDIA on August 15, 2010

J. Venkatesan In The Hindu

New Delhi: The Supreme Court on Friday asked Parliament to revisit the provision relating to cruelty and dowry harassment, pointing out that a large number of frivolous complaints are filed and courts are flooded with such matrimonial cases. A Bench of Justice Dalveer Bhandari and Justice K.S. Radhakrishnan said “a serious relook of the entire provision is warranted by the legislation.”

It said: “The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code (Husband or relative of husband of a woman subjecting her to cruelty). It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.”

Writing the judgment, Justice Bhandari said “The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society.” Maintaining that it was high time the legislature makes suitable changes to the existing law, the Bench said “It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.” On the increasing number of matrimonial litigations in the country, it said “All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.”

The Judges said “It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.” Cautioning the advocates, the Bench said “The members of the Bar have enormous social responsibility and obligation to ensure that the social fibre of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. They must discharge their duties to the best of their abilities to ensure that social fibre, peace and tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualised by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.”

In the instant case, the appellants Preeti Gupta, the married sister-in-law, a resident of Surat and brother-in-law Gaurav Poddar challenged the Jharkand High Court order refusing to quash the summons issued by a trial court in Ranchi, in a criminal case filed under Section 498-A by one Manisha Poddar against her husband Kamal Poddar and his relatives, in a matrimonial dispute. Contending that the case had been foisted against them they sought quashing of the impugned judgment and the complaint. The Bench accepting the contentions allowed the appeal and quashed the judgment and the complaint against the appellants.

http://www.hindu.com/2010/08/15/stories/2010081562151400.htm

Towards protecting women

Posted in CRIME AGAINST WOMEN, DOMESTIC VIOLENCE by NNLRJ INDIA on June 18, 2010

Shailaja Chandra IN THE HINDU

In the absence of whole-hearted steps to implement the provisions effectively, the Protection of Women from Domestic Violence Act 2005 is falling short of expectations.

The Delhi High Court ruled recently that a woman can also be held liable under the Protection of Women from Domestic Violence Act 2005. This the court did on the basis of the interpretation that ‘relatives’ included not only male but also female members of a family. The absence of such a provision, it felt, could encourage men to instigate women members of a family to commit violence.

The Act came about in response to decade-long pressure from international organisations and activists in India. But five years later, despite noble intentions, it remains an unviable proposition. Little thinking has gone into understanding the context in which spousal abuse overwhelmingly occurs in India. The ground realities have been ignored and the implementation aspects left woolly and unprovided for.

A senior lawyer in the Supreme Court, K.K. Rai, who is conversant with matrimonial cases, says: “The law just does not take into account the realities of the joint family system where female members of the family heap both physical and emotional aggression against a woman. We need guidelines and mechanisms which ensure continuance of the joint family ethos, yet cushion the woman against violence.”

Whereas domestic violence takes place in all social, economic and cultural settings worldwide, in India the difference is that families are conditioned to tolerate, allow, even rationalise domestic violence. Most of the violence takes place inside homes which should offer the woman maximum security. The 2005 law focusses on the prohibition of marital aggression, the issue of protection and maintenance orders against husbands and partners who abuse a woman emotionally, physically or economically. This sounds fine on paper, but a one-size-fits-all approach ignores women who need such protection the most.

The National Family Health Survey-3 (NFHS) shows that the prevalence of violence increases sharply in the absence of education and reduces by half in the case of women who have acquired 10 years of schooling. Both physical and sexual violence are highest among women in the poorest wealth quintile, and it declines steadily with increasing wealth. Given the scarcity of resources, the legislation should have initially focussed on the conditions in which illiterate and uneducated women reside in joint families. Instead, it has painted the subject with one broad brush, seeking to rely on the efficiency of the courts to decide such matters within 60 days.

Administratively, the Act requires each State government to appoint protection officers, register service providers and notify medical facilities for the implementation of the Act. While the Ministry of Women and Child Development and the Ministry of Home Affairs have issued advisories to State governments, with the exception of West Bengal and Delhi no State is known to have appointed independent protection officers even five years hence. Most States have fobbed off the requirement by giving “additional” responsibility to existing functionaries. Rajasthan, a high-prevalence State for domestic violence, has entrusted the already overburdened anganwadi workers who are striving to ensure the supply of nutrition to infants, children and lactating mothers, with the responsibility.

In Delhi where at least an attempt has been made to recruit independent protection officers, Yasmin Khan, a member of the State Women’s Commission, laments that it is just not possible to appoint dedicated staff on a salary of Rs. 15,000 a month. “How can a newly recruited MSW [degree-holder], even if she agrees to join, visit homes, draw up reports, seek protection orders from magistrates, create and maintain legal documentation and pursue court directions when she has no help, no transport, no office and no training?”

Tabling figures regarding protection orders issued so far, Parliament was recently given information only in respect of a handful of States and Union Territories. Even here, nothing is known about what the majority of them are doing. The numbers, which have not crossed four figures in five years, are too sparse to inspire confidence. Looking to the findings of country-wide surveys that have shown that over 40 per cent of all married women had experienced physical or sexual violence, the Act does not touch even the fringe of the problem.

The experience of Rajasthan is vividly described by Kavita Srivastava, who represents the People’s Union for Civil Liberties and who has been pursuing women’s causes. According to her, while the protection officers are in acute need of legal training, the magistrates before whom the cases are presented also need orientation. She feels that scant regard is paid to the 60-day limit, and domestic violence matters are treated in a most routine manner — thus defeating the purpose for which the Act was made. Every case decided against the husband automatically goes up in appeal, and it becomes an unending story. Lawyers get busy converting practically all domestic violence cases into maintenance matters, in the process missing the point of preventing immediate assault and violence against the woman. In some instances, magistrates have issued contempt orders against the very protection officers who stand as a bridge between the woman and her aggressor. In such a climate, how can women expect immediate and sustained protection?

Unlike in the U.K. and the U.S., domestic violence has not been on the radar of the political executive, politicians in general, the police or the media in India. Such cases would seem to lack the sensationalism or ghoulish appeal of murder or rape cases. Repeated surveys have shown that in Indian society, both men and women believe that domestic violence can be tolerated in certain circumstances. These include being rude to the in-laws, not caring for children, preparing food badly or going out of the house without permission. If the vast majority of people accept that this is cause enough for domestic violence, it is doubtful if even the most rigorous protection officer would ever succeed in making inroads into a battered wife’s household, leave alone haul up the husband before a district court.

The 2005 Act is impractical and consequently non-implementable in favour of those that need protection the most. Looking at the size of the country and the problem, it would be better to have a law that targets the poorest and the most uneducated and illiterate among women to start with, at least until the mechanisms to implement this nuclear family-lawyer dominated law are in place, if that is what the legislature wants. Until then, the plight of the poorest women — both rural and urban — who get repeatedly thrown out of their homes in the dead of night should be confronted. In the full knowledge of neighbours, thousands of the really poor and uneducated are repeatedly subjected to slapping, kicking, being dragged by their hair; twisted by the arm, forced to have sexual intercourse, even threatened with knives and household implements, as NFHS-3 surveys have vividly shown.

There is no use having a law that is meant for the whole country when there is no one to implement it. Until full-time and properly oriented protection officers are recruited — which seems to be an unattainable target now — a more practical way would be to prescribe summary disposal of cases through weekly courts organised at the tehsil or ward level. The protection officer’s responsibility should be confined to giving a report before a mobile magistrate citing two witnesses from the neighbourhood. For every case where a protection order is issued, the protection officer and the witnesses should be compensated in recognition of having successfully brought forward the case for intervention. At the village level, the panchayats as well as the health, education and social welfare fieldworkers and non-governmental organisations could be permitted to voluntarily take on the role of protection officials, to be compensated for every case that ends in favour of a battered woman.

The U.K. took several years to train its police, its health workers and its judicial magistrates on handling the domestic violence law. Such a process has hardly happened in India. The mindset of those who deal which domestic violence has first to be changed before the law can subserve the interests of those for whom it was primarily intended. Until then, it is essential to protect those who have no voice and whose situation is well known to the entire neighbourhood. If the National Rural Health Mission’s Accredited Social Health Activists can be compensated for accompanying a pregnant woman to hospital, why not those who accompany a battered woman and present her case before a magistrate? A separate section in the law that addresses the special needs of the most vulnerable would help change the focus of the Domestic Violence Act in their favour.

(Shailaja Chandra is a former Chief Secretary of Delhi, and Secretary to the Government of India. She was the first Executive Director of the National Population Stabilisation Fund set up by the Government of India.)

http://www.hindu.com/2010/06/17/stories/2010061753321000.htm

Khap panchayat: signs of desperation?

Jagmati Sangwan IN THE HINDU

The number of cases in which the totally unconstitutional caste panchayats have openly defied the law of the land by issuing illegal diktats has increased manifold.

In Haryana today, rapid capitalist transformation is accompanied by a regressive feudal consciousness. As education and political awareness spread among Dalits, women and backward sections, alongside there is a massive consolidation of caste ( khap) panchayats in defence of the status quo. The number of cases in which the totally unconstitutional caste panchayats have openly defied the law of the land by issuing illegal diktats has increased manifold. Attacks on young couples, Dalits and progressive-minded people have become frequent.

A recent landmark judgment by the Additional Sessions Court at Karnal in the Manoj-Babli “honour” killing case, in which five accused were given the death sentence, sent shock waves among caste panchayat leaders, as it reminded them that they were not above the Constitution. The court took serious note of the fact that the policemen deployed for the security of Manoj and Babli actually facilitated the accused in perpetrating the crime.

Though geographically small, Haryana is socially and culturally heterogeneous. For example, in some areas and among certain castes, marriages within the village and even intra- gotra marriages are not uncommon. At the same time, such marriages are treated as incest in certain other areas, and among other castes. Even the caste or khap panchayat is not a feature prevalent throughout the State, as many believe, but is confined to a particular region. Thus, a section of people of one particular caste proclaims itself as the cultural representative of Haryana, refusing to acknowledge the customs and traditions practised by others in their own neighbourhood.

A look at the demography of the State and its development statistics would help to contextualise the problem. The State that stood second in per capita income in the country has one of the lowest sex ratios (821 in the 0-6 age group). Female foeticide is rampant, and the situation is so bad that wives are being brought from far off States. Not once have these panchayats called a maha-panchayat to pass a resolution against female foeticide or dowry or even in connection with the crisis in agriculture — problems staring the people of Haryana in the face.

After the judgment in the Manoj-Babli case, however, a congregation of caste panchayats representing the Jat neighbourhoods from Haryana, Uttar Pradesh and Rajasthan was called at Kurukshetra on April 13. It was decided that panchayats would now fight for legal status to legitimately maintain the “social order.” One of the main agendas of this sarv-khap panchayat was to push for amendments to the Hindu Marriage Act, 1955 that would ban marriages within the same gotra (clan within which men and women are considered siblings and hence cannot marry). Under this Act, marriages between certain lineages from the paternal and maternal sides are already barred.

Most of the khap panchayat diktats are against couples who are not from the same gotra. In fact, not more than one case of honour killing has been of a couple within the same gotra. By creating the false impression that all marriages of choice between young couples are incestuous, what the khaps are actually opposing is the right to choose a marriage partner. Among the several instances of khaps issuing fatwas in Jaundhi, Asanda, Dharana, Singhwal, Hadaudi, Maham-kheri, Ludana and other villages, not a single one was an intra- gotra marriage, yet the married couples were declared siblings, and families made to suffer boycotts and excommunication from their villages.

A sad example of the gotra row is that of Ved Pal Moan, brutally beaten to death last year when he tried to secure his wife who was confined by her parents at Singhwal village in Jind district. He was escorted by a police party and a warrant officer of the High Court. Ved Pal had married neither within his gotra nor within the same village. In this case, another absurd code was invoked by the khap: that the couple violated the custom of not marrying in the neighbouring village as it forms part of bhaichara (brotherhood). A khap congregation held in March 2009 publicly pronounced the death sentence for Ved Pal, and it succeeded in executing it in June. As couples are selectively targeted, it is clear the real motive is to control women’s sexuality to ensure that property remains within the patriarchal caste domain (mainly Jats in Haryana).

The sarv khap panchayat also called for social boycott of individuals who raised their voice against the caste panchayats. A former police chief of Haryana, himself a self-styled caste leader, went on record threatening khap-critics. How can a former DGP publicly threaten law-abiding citizens, and yet continue to enjoy the hefty perks and pension out of the public exchequer?

The caste panchayat leaders have decided to stifle any voice of assertion from the backward sections. On April 21 more than 20 houses of Dalits were burnt down at Mirchpur village, in the presence of a police force, allegedly by thugs belonging to a dominant caste, resulting in the death of an 18-year-old handicapped girl and her ailing father. A panchayat of khaps convened at Mirchpur three days after the carnage not only declared all arrested persons innocent but also issued an ultimatum to the government for their release! This was exactly the pattern adopted by caste panchayats in the Gohana (2005) and Duleena (2002) incidents, where brutal attacks on Dalits took place.

Even elders from socially and economically weaker families are not spared. At Khedi Meham in December 2009, the father of a newly wed groom was forced to hold a shoe in his mouth in front of the whole village by the panchayatis. Ordinary citizens are caught in the contradiction between two sets of values — the blind consumerism of the neo-liberal dispensation, and the outdated feudal values represented by the khaps. The first is no replacement for the second, and indeed, pseudo-modernism only strengthens the forces of revivalism. The alternative to both types of distortions lies in the spread of healthy and progressive values that can be unleashed through only a new social reform movement in the entire Hindi belt.

Limited but crucial role

The judiciary does have a crucial role to play but has its limitations too. On June 23, 2008 Justice K.S. Ahluwalia of the Punjab and Haryana High Court made a revealing observation while simultaneously hearing 10 cases pertaining to marriages between young couples aged 18 – 21: “The High Court is flooded with petitions where … judges of this Court have to answer for the right of life and liberty to married couples. The State is a mute spectator. When shall the State awake from its slumber [and] for how long can Courts provide solace and balm by disposing of such cases?” A legislature with little political will and a pliant executive will have to be made responsive under pressure of a mass movement.

The voices of dissent are also getting consolidated under the umbrella of organisations like the AIDWA and other democratic forces. The younger generation must stand forth as responsible social activists and lead the struggle for change in an otherwise feudal society that lives by the dictum “ Jiski lathi uski bhains” (the powerful call the shots). In Haryana each passing day is costing the lives of innocent women and men.

( The author is Director, Women’s Study Centre, Maharishi Dayanand University, Rohtak, and State President of AIDWA, Haryana.)

‘No corroboration needed in rape cases if victims are illiterate’

J. Venkatesan IN THE HINDU

Their statements have to be accepted in toto: Supreme Court

‘Why should the evidence of a woman complaining of rape be viewed with doubt or disbelief?’

‘Improper and undesirable to test her evidence with suspicion, treating her like an accomplice’


NEW DELHI: The Supreme Court has held that in cases of rape, particularly, if the victims are illiterate, their statements have to be accepted in toto without further corroboration for convicting the accused. A Bench of Justice comprising Justice P. Sathasivam and Justice R.M. Lodha said: “Any statement of rape is an extremely humiliating experience for a woman, and until she is a victim of sex crime, she would not blame anyone but the real culprit. “While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her, and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for.” Writing the judgment, Justice Sathasivam, quoting earlier judgments, said: “When a First Information Report is lodged by a lady with regard to the commission of offence like rape, many questions would obviously crop up for consideration before she finally decides to lodge the FIR. “It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the prosecutrix must have also gone through great turmoil and only giving it a serious thought, must have decided to lodge the FIR.” Quoting another judgment, the Bench said seeking corroboration of the rape victim’s statement before relying upon the same would amount to adding insult to injury. “Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? Corroborative evidence is not an imperative component of judicial credence in every case of rape.

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

“It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust, and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice,” the Bench said. In the instant case, two illiterate sisters, working in a quarry, were raped by appellants Santhosh Moolya and Surendra Gowda in Ashwathapura village in Dakshina Kannada, Karnataka. The trial court found the accused guilty and convicted them to undergo seven years rigorous imprisonment, and this was confirmed by the Karnataka High Court. The present appeals are directed against this judgment on grounds that the FIR was registered 42 days after the incident and that it was not safe to rely on the testimony of the victims alone in the absence of further corroboration. Rejecting the contention and dismissing the appeals, the Bench said: “We are satisfied that though there was a delay of 42 days in lodging the complaint, the same was properly explained by the victims and other witnesses. We have noticed that except the victims, no male member is available in their family to help them. “Further, the prosecution witnesses asserted that after committing the rape, the appellants had threatened that they would kill the victims if they informed anyone. There is no reason to disbelieve the statement of the victims and the courts below have rightly accepted their statements.”

http://www.hindu.com/2010/04/28/stories/2010042861390800.htm

Can a woman rape a man?

Posted in CRIME AGAINST WOMEN, SEXUAL OFFENCES, VICTIMS by NNLRJ INDIA on April 1, 2010

DIVYA A  IN THE TIMES OF INDIA

The government recently decided to amend the Indian Penal Code (IPC) and replace the word “rape” with “sexual assault’’. The proposal would make the offence of rape gender-neutral. But can a government change the meaning of the word “rape”?  Can a man rape a man? Can a woman rape a woman? And finally, unimaginably, can a woman rape a man? Even dictionaries offer gender-specific meanings for rape.  So, does that make a nonsense of the amended IPC? Flavia Agnes, Mumbai-based lawyer and activist, says it is certainly far-fetched. “To presume that women can rape men is rather outrageous,” says Agnes. “While women can sexually harass men, they can’t sexually assault them. There have been no such cases anywhere.” In fact, rape is a “deeply gendered construction”, with several social implications for women such as stigma, she adds.  One rape case is registered every 54 minutes somewhere in India. Many more incidents go unreported. Take the case of 19-year-old Sulabha Rani* from Uttarakhand’s Chamoli village. In 2004, her uncle took her to Dehradun to work as a domestic help. He sold her to two men who raped her in a moving car. The next morning, she found herself lying half-naked and bruised on a sidewalk. Back with her parents now, and with her uncle absconding, Sulabha reportedly hasn’t been able to leave her bed or utter a word since that day.

Then there is Radha, an Agra college student, who tried to take on a bunch of rowdy goons making lewd remarks about passing girls. One evening, as she returned from college, Radha was raped by the goons, who said they were punishing her for her ‘bravery’.

So, can a woman ever do the same to a man? Agnes says rape is not just a physical assault, but an expression of power and control by men over women. “As we do not live in a gender-neutral society, having a gender-neutral rape law will only make the situation worse for women, as many may get accused of rape,” she says. Legal experts are apprehensive the IPC amendment will open the floodgates for other gender-neutral laws, such as those governing domestic violence, dowry death, cruelty to wives or even maintenance to women after a divorce.  But some aspects of the proposed amendment are being welcomed. Sexual assault is to cover crimes such as sodomy, insertion of a foreign object and other offences that are not currently covered by the legal definition of rape. The rape law was amended in 1983 and ever since, women’s groups have campaigned for a law on sexual assault, which would cover issues of incest and non-penetrative child sexual abuse. Author-activist Pinki Virani, who filed a plea for the mercy killing of Aruna Shanbaug, a paralysed and brain-dead Mumbai nurse who was attacked and raped in 1973, says, “The amendment may not help women too much but it will help minor victims. I’m glad boys will be included in the category of victims who can be sexually preyed upon by older men without sodomy being the only criteria of boy-rape.”  The provisions can also help in cases such as that of Ruchika Girhotra, who was sexually molested by Haryana DIG, SPS Rathore as a teenager, 19 years ago. Aradhna Gupta, who fought for justice for her dead friend, says this is a commendable move. Speaking to STOI from Sydney, Gupta says: “Now, more culprits can be booked for committing heinous sexual crimes. Had it happened two decades back, Ruchika would have been alive.”

Virani says the amendment raises questions about whether cases pertaining to children can be clubbed with adults. What about incest, arguably more traumatic than a single assault by a total stranger? Agnes says the government must take these complexities into account before amending the law of the land governing rape.  *The names of victims have been changed

http://timesofindia.indiatimes.com/home/sunday-toi/view-from-venus/Can-a-woman-rape-a-man/articleshow/5733229.cms

COMMENTS HAVE BEEN INVITED BY THE MINISTRY OF HOME AFFAIRS ON THE CHANGES IN CRIMINAL LAW WITH REGARD TO RAPE AND SEXUAL ABUSE

Criminal Law (Amendment) Bill 2010

MINISTRY OF HOME AFFAIRS , GOVERNMENT OF INDIA INVITES SUGGESTIONS ON REVIEW OF RAPE LAWS

A High Powered Committee (HPC) under the Chairmanship of Union Home Secretary was set up to examine the issues relating to “Review of Rape Laws”. The suggestions made by the HPC have been formulated into The Criminal Law(Amendment) Bill, 2010. The draft Bill has been uploaded on the MHA’s website http://mha.nic.in for information and comments from the general public. Ministry of Home Affairs has also invited views/comments and suggestions of the States and UTs on the draft Bill. The response can be sent by 15th May, 2010.

PLS SEE THE PROPOSED CRIMINAL LAW AMMENDMENT BILL

Criminal Law (Amendment) Bill 2010

Readers are invited to send in their comments .

Rape law and reform

Posted in CRIME AGAINST WOMEN, GENDER, HUMAN RIGHTS, SEXUAL OFFENCES, VICTIMS by NNLRJ INDIA on March 24, 2010

EDITORIAL IN THE HINDU

The laws relating to rape and sexual assault are set to undergo a radical overhaul with the Union Home Ministry readying a draft Bill on the subject. Home Minister P. Chidambaram’s remarks suggest that the proposed legislation is likely to be based on the Law Commission of India’s 172nd report, which called for a thoroughgoing review of our rape laws. The 2000 report was prepared following a direction from the Supreme Court that loopholes in the law relating to rape and sexual assault should be identified with a view to plugging them. At least two major changes seem to be on the anvil. First, the meaning of rape, which Section 375 of the Indian Penal Code construes as non-consensual sexual intercourse, will be broadened to cover other forms of penetrative acts that fall outside the purview of the existing definition. The Law Commission, the National Commission for Women, and various feminist organisations have supported such a widening of the definition of rape on the ground that the existing legal provisions neither reflect nor deal adequately with the various kinds of sexual assault women are subjected to in India. The restrictive interpretation of the term ‘penetration’ in the Explanation to Section 375 fails to address the myriad ways victims of sexual crime can be humiliated — physically, emotionally, and psychologically. Rape, as feminists have argued, must be understood as an experience of brutal violation and degradation and not just the act of penetration.

The proposed legislation will also broaden the definition of rape in another respect — by making it gender-neutral. This is principally to protect males, particularly young boys, who could be victims of homosexual crime. As the Law Commission observed in its report on rape laws: “Not only women but young boys are being increasingly subjected to forced sexual assaults…[which] causes no less trauma and psychological damage to a boy than to a girl subjected to such offence.” It is a mistake to regard gender-neutrality as a dilution of the rape law. While girls and women are victims of the vast majority of sexual crimes, boys and men suffer too. Statistics reveal that one out of 10 rape and sexual assault victims in the United States and England is male. Indian laws relating to rape have remained virtually unchanged since 1862, when the IPC came into force. (Some amendments made in 1983 have not made much of a difference.) It is necessary to review the law in a humane and progressive manner, factoring in what we know about the patterns of sexual assault and the severe trauma it inflicts on victims. The Home Ministry’s draft Bill, which promises to do precisely this, will be closely watched.

http://beta.thehindu.com/opinion/editorial/article285435.ece

CJI advocates ‘due regard’ for victim’s wish to marry her rapist : WHATS HAPPENING TO THE CHIEF JUSTICE OF INDIA

This news appeared in the Indian Express. This is a very important Indicator of the levels of sensitization our Judiciary has on issues related to women and children. If this is the statement of the Chief Justice of India just imagine what might be the situation in the lower Judiciary.

CJI AND MOILY AT WOMENS MEET

CJI AND MOILY AT WOMENS MEET

CJI advocates ‘due regard’ for victim’s wish to marry her rapist : INDIAN EXPRESS

Chief Justice of India (CJI) K G Balakrishnan today said that “due regard” should be given to the wishes of a rape victim if she chooses to marry the rapist or have the baby conceived as a result of the crime.“Due regard must be given to their personal autonomy since in some cases the victim may choose to marry the perpetrator or choose to give birth to a child conceived through forced intercourse,” Balakrishnan said. The CJI was addressing the national consultation on access to justice, relief and rehabilitation of rape victims, organised to mark International Women’s Day, which is being observed tomorrow. Several high court judges and judicial officers were present in the audience.

Women’s rights activists were not amused by the CJI’s stand.“His statement is extremely unfortunate,” asked Brinda Karat, general secretary, All India Democratic Women’s Association. “We expect the CJI to be concerned about extremely low conviction rate in rape cases, delay in deciding the case and the fact that victims are more often than not also blamed for the occurrence of the crime. Instead, the CJI chooses to take this line. Is he suggesting that this could be a viable alternative for the victim?”

National Commission for Women (NCW) chairperson Girija Vyas also took exception to the CJI’s statement.

“I don’t agree with his contention,” Vyas said. “If what he has suggested were to happen, it would be an easy way out for the rapists, who would first commit rape and then, if caught, make an offer to marry the victim. For the victim, such a marriage would be like dying every moment. Rapists deserve the strongest possible punishment,” she said.

Union Minister for Women & Child Development, Krishna Tirath, whose Ministry organised the event, reacted cautiously, saying the CJI’s suggestion would have to be read on a case-by-case basis. In his address, Balakrishnan also said that judges, lawyers and social activists should not take an “overtly paternalistic approach” while making decisions for the welfare of rape victims.At the same time, he refused to accept the argument that “high mobility” of women in modern times was one of the reasons for the sharp rise in the number of rapes. “I do not agree with this proposition. Because it is the task of the criminal justice system to prevent and punish the culprits,” he said.

Women’s rights activists pointed out that the CJI’s view flew in the face of a ruling by the Supreme Court, which said that neither a proposal of marriage nor any other settlement between the rapist and his victim could condone the crime.In 2006, the apex court had observed that rape was “a crime against basic human rights” and violative of the victim’s Right to Life.

(With Agency inputs)

http://www.indianexpress.com/news/cji-advocates-due-regard-for-victims-wish-to-marry-her-rapist/588136/0

Respect personal autonomy of rape victims, says K.G. Balakrishnan

Chief Justice of India K.G. Balakrishnan has said “due regard” must be given to the “personal autonomy” of rape victims to decide on whether they should marry the perpetrator or choose to give birth to a child conceived through forced crime. Speaking at a national consultation on “Access to Justice, Relief and Rehabilitation of Rape Victims” here on Sunday, Justice Balakrishnan said judges, lawyers and social activists should also ensure that they do not take an overtly paternalistic approach when they have to make decisions for the welfare of rape victims.

“It is not possible for policy makers and judges to prescribe a ‘one-size-fits-all approach’ and we must make honest efforts to build the institutional capacity needed for the proper rehabilitation of rape victims.” Calling for a robust discussion on the proposed comprehensive “Scheme for Relief and Rehabilitation of Victims of Rape” mooted by the Women and Child Development Ministry, the Chief Justice also said that the Centre’s proposed bill which contemplates the creation of fast-track courts to try sex-related offences, must also keep in mind the interests of the victim, and not merely punish the offenders.

“Adequate attention should also be drawn to suggestions for provision of shelter, counselling services, medical and legal aid. It must be kept in mind that an act of rape or molestation can have long-lasting consequences such as mental trauma, physical disability and frustration of prospects for marriage and employment.” He also referred to the ‘secondary victimisation,’ which a rape victim often has to suffer during the trial of the accused due to inconvenient, probing and often indecent questions by defence counsel.

“There is a very real phenomenon described as ‘secondary victimisation’ wherein the victim of a crime faces additional harassment and humiliation in the course of investigation and trial. Especially when the perpetrators are in a position of power over the victims, there is a strong distrust of the credibility of the investigation itself,” Justice Balakrishnan pointed out. “Some recent cases highlighted in the press have shown how the investigative machinery can often be manipulated to protect influential persons, howsoever reprehensible their crimes may be,” he said. “The investigators, prosecutors and defence counsels must exhibit an appropriate degree of sensitivity to the victims,” he said.

The CJI also highlighted recent changes in law, which provide that the past sexual history of victims must be ignored.

http://beta.thehindu.com/news/national/article202464.ece

Misused anti-dowry laws in subcontinent

Posted in CRIME AGAINST WOMEN, DOMESTIC VIOLENCE, GENDER, HUMAN RIGHTS by NNLRJ INDIA on March 8, 2010
TAHIR MAHMOOD IN NEW INDIAN EXPRESS 08 Mar 2010

Whenever a law is made too stringent under the pressure of emotionally surcharged social reactions, there is the danger of its misuse” once observed a learned Supreme Court judge speaking on the anti-dowry legislation of India. The Dowry Prohibition Act of 1961, which made an outright declaration that ‘demanding, giving and taking’ of dowry would all be punishable offences, has been made truly stringent by repeated amendments and additions introduced in subsequent years not only in its own text but also in the Indian Penal Code of 1860, the Evidence Act of 1872 and the Code of Criminal Procedure 1973. And yet the social evil of dowry remains rampant throughout the country. Having its origin in an ancient custom widely prevalent among the Hindus, the canker has gradually percolated through the other communities of India too. Even the Muslims whose religious law has no space for dowry and regards it haram (absolutely prohibited, like alcohol and pork) have not remained away from this horrendous practice — constant preaching by their religious leaders regarding its wholly un-Islamic nature notwithstanding. The anti-dowry laws of India of course apply to the Muslims, as much as to all other citizens, but they have failed to discipline them and all other communities in this respect.The practice of dowry is in vogue among the Muslims in the entire subcontinent — no less in the so-called ‘Islamic Republic’ of Pakistan. The Dowry and Bridal Gifts (Restriction) Act enacted by the federal legislature in Pakistan in 1976 is more stringent than the Indian law but has hardly been successful in weeding out this social evil. In 1982 the other Muslim state of the subcontinent, Bangladesh, enacted a Dowry Prohibition Act based on a selection of provisions taken from the Indian law of 1961 and the Pakistan law of 1976. In all three countries these grandiose anti-dowry laws have remained mere showpieces having no noticeable impact on the society. Besides utter failure to achieve their actual purpose, their provisions are in fact being misused to settle personal scores and pressed into service to add fuel to family feuds.The dowry prohibition laws enacted in the three countries in the subcontinent exempt from their purview what is known in Islamic law as maher (translated somewhat inaccurately as dower) which is entirely different from — in fact diametrically opposite of — the concept of dowry. While dowry — called jahez by the Muslims and strictly disallowed by their religion — is demanded by the groom or his family from the bride’s side, ‘dower’ in Islamic law is property to be settled by the groom in cash or kind in favour of the bride. Meant to be a financial security for the bride, it is and always remains her absolute property which she can unconditionally use and deal with as she likes. Islamic law gives the parties to intended marriages freedom to settle between themselves the amount of dower and the time for its payment — both generally to be proposed by the bride’s family — and if no such agreement takes place, the law has its own rules for settling what is payable as dower, and when.Unfortunately, Muslims in this part of the world have distorted the Islamic legal concept of dower beyond recognition. The amount fixed here is often kept ridiculously low, on the pretext of following the Sunnat (Prophet’s practice) referring to the dower fixed by the Prophet for his beloved daughter Fatima over 1400 years ago. As regards the time for discharging the dower obligation, there is a terrible misunderstanding in the subcontinent that the liability arises only if and when there is a divorce. This is the widely prevalent misconception due to which dower has been listed among the ‘divorcee’s rights’ in the Muslim Women (Protection of Rights on Divorce) Act enacted in India in 1986 in the aftermath of the celebrated Shah Bano case. In actual practice, even in the cases of divorce the poor divorcee has to run from pillar to post and often fight a prolonged court case to realise her unpaid dower. And the widow’s dower, which legally becomes due the moment her husband breaths his last and is payable from his heritable estate, is never paid — she is always presumed to have magnanimously agreed to forego it in his last moments. In 1954 a Muslim judge of the Supreme Court of India had even ruled that the unpaid dower of a widow is an ‘unsecured debt’ and for its realisation she has no priority over the other debtors of the deceased husband — a wholly erroneous and unjust ruling indeed.Unfortunately, no law has ever been enacted anywhere in the subcontinent to implement the Islamic principles of dower in their correct perspective. On the contrary an old law in Kashmir, enacted in 1920 and still in force on both sides of the Line of Control, empowers the courts to slash the stipulated amount of dower if it appears ‘excessive’. The present practice regarding dower rights of divorced and widowed women militates against the letter and spirit of true Islamic law on the subject married Muslim women in the subcontinent are generally deprived of the financial security judiciously clubbed in Islamic law with the institution of marriage as its inseparable part. Sadly, the Muslims in the subcontinent have practically swapped the highly appreciable Islamic law on dower for the highly abominable custom of dowry. “The Prophet of Islam was so humane that his law if insightfully interpreted lends its weight to gender justice,” a great non-Muslim judge of India V R Krishna Iyer has once observed; but who cares to so interpret and practise that law?In all countries of the subcontinent the general anti-dowry laws are misconstrued and misused, while the Islamic law of dower is distorted and disused. Can, then, the subcontinent showcase them with some pride? Let us honestly answer the question on this International Women’s Day.

(The author is a senior professor of law and president, International Islamic Law Consortium)


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