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--------------- Print Magazine --------------
  May 2016
  April 2016


Zero Tolerance Approach - Need of the Hour

Hemant Kumar, Advocate
Amidst national outcry witnessed over sudden spurt in incidents of rape and sexual assault across the country, it is high time to revisit our prevalent law(s) which deal with such heinous offences so as to make them much more effective and stringent in line with present day needs and challenges along with introduction of much more vigorous and community-assisted policing for their prevention but before any fresh measures as also recommended by Justice Verma Committee are taken, there is an urgent need to change our traditional Indian society’s patriarchal mindset towards the Fairer Sex coupled with an inculcation of approach for Gender Sensitization in the Criminal Justice Machinery within our system of Administration of Justice.

Right from the occurrence of an unfortunate incident of brutal gang rape and gruesome assault on a 23-year old young girl on a moving bus on the roads of our National Capital on the fateful night of December 16 last year, which eventually led to her death thirteen days later, we have been witnessing a spate in cases of rape and other sexual assaults, particularly against young women, across every nook and corner of the country.

Of course, one reason for the same may be attributed to the much hype being generated around us owing to both print and electronic media devoting prime reportage and broad coverage to such kind of atrocious incidents now-a-days, but everyone would agree that in recent years, there has been a virtual surge in sexual crimes, notably against teenage girls, both in urban as well as rural India.

A compendium titled "Crime in India" published annually by National Crime Records Bureau (NCRB) substantiates this glaring fact. As per the latest available edition of the same, in the year 2011 there were 24,206 cases of Rape across the country. Additionally, there had also been 8,570 cases of Sexual Harassment and 42,968 incidents of Molestation against women. Needless to say that these figures just reflect the reported cases and exclude those numerous instances where hapless survivors/victims prefer to keep mum either owing to fear of mental or social trauma coupled with lack of family support or else owing to criminal intimidation by alleged perpetrators/offenders and above all owing to an absence of a humane mechanism guaranteeing proper counselling and grievance redressal in our Police machinery which can inculcate confidence in these victims so as to report the same and pursue any action fearlessly.

Next, although the charge-sheeting rate in respect of cases of Rape was over 93 per cent in 2011, the conviction rate happens to be highly dismal - just 26.4 percent. Similar is the case with respect to incidents of other forms of sexual harassment and molestation. This clearly proves that although the reported cases after being investigated by the Police do reach the concerned courts, perhaps owing to prevalence of certain intricacies in present law coupled with adoption of unwise, though of course professional, tactics by seasoned Defence Counsels who during the trial proceedings explore various lacunae/loopholes both in law as well as in evidence tendered by the prosecution, they do not result in conviction of the accused.

The penal law and criminal procedure are so dilatory and slow-moving that it takes long for a horrendous crime like gang rape to reach the final sentencing stage. We must radicalize the whole process. There must be a mobile police team which, if a sex terror incident is reported in a newspaper or otherwise, should not wait for an FIR but proceed forthwith to the spot, trace the vehicle or suspect, arrest him at once, go to the court with a charge sheet, and prosecute the case before a special court with a specially trained advocate and judge, and seek an instant trial with immediate notice to the accused, quick hearing and sentence. The court must go to where the scene or witnesses are and not allow delays because of non-appearance of accused, witnesses, etc. Urgent disposal of sex offence cases, of course with fair trial requirements complied with, is the need of the hour. Justice V.R. Krishna Iyer

Further, those entrusted with conducting prosecution are government counsels who are often not fully conversant with psychology of women and not well-trained so as to effectively bring home the guilt of the accused person(s) beyond reasonable doubt. One more reason for poor success rate of prosecution is the often belated and faulty investigation by the Police Officials generally conducted in archaic and non-scientific manner resulting in the loss of vital available forensic incriminating evidence which can effectively nail the accused person(s).

Hence, any change contemplated in the Law relating to Rape or Grave Sexual Assault ought to be preceded or supplemented by mandatory impart of state-of-the-art training with usage of modern day technology employed in other advanced countries to the Investigating wing of our police machinery as without the same, no fruits can be reaped from the desired law no matter howsoever harsh it is made.

Be that as it may, the abovementioned Delhi incident has indeed shaken the conscience of our country with voices being raised vociferously in various quarters particularly by feminist and student organizations so as to make the prevalent law(s) dealing with safety and dignity of women much more effective, hassle-free and stringent.

The Central Government sensing the mood of the nation after taking cognizance of the countrywide agitations in this regard which were spearheaded by none other than activists of Civil Society swung into action and constituted a Three Member Jurists Committee headed by former Chief Justice of India, Justice JS Verma on December 23, 2012 with a mandate to recommend amendments in Criminal Law so as to provide for quicker trial and enhanced punishment for criminals, accused of committing sexual assault of extreme nature against women.

The Committee which submitted its voluminous report on January 23, 2013 has, inter alia , recommended widening the nature of sexual assault inflicted against women by re-wording section 354 IPC which explicitly includes tackling instances of disrobing a woman, voyeurism and stalking coupled with substitution of current section 370 IPC with offence of "Trafficking of a person" including for prostitution and sexual exploitation purposes.

As far as section 375 IPC is concerned, the Committee has reiterated the use of word "Rape" as against "Sexual Assault" used in the Criminal Law (Amendment) Bill, 2012 which was introduced in the Lok Sabha in December last year. Among other significant features of the Committee's viewpoint on offence of Rape is its suggestion that in such type of cases, consent will not be presumed in the event of an existing marital relationship between the complainant and the accused. Indeed the Committee deserves a due pat on its back for its daring attempt to take up and define the hyper-sensitive and hitherto neglected concept of "Marital Rape".

While falling short of recommending death penalty or even chemical castration for sexual perpetrators, as demanded by various quarters of the civil society and feminist groups, the Verma Committee retains existing punishment of rigorous imprisonment of not less than seven years and extending to life except in grave cases where the former would not be less than ten years of rigorous imprisonment extending to life term. But the Committee has gone a step further in recommending that in cases of gruesome rape in which the victim either dies or reaches a Persistent Vegetative State (PVS), the punishment would not be less than twenty years and extending to convicted person's whole natural life. Similar would be the case in respect of Gang Rape followed by Death/PVS of a victim or in case of repeat sexual offenders. In case of compensation, it has been everywhere suggested that it should be as adequate so as to meet the medical expenses incurred by the victim.

As a corollary to amendments in substantive law, the Committee has also recommended suitable changes in our procedural laws viz. Criminal Procedure Code and Evidence Act and last but by all means the least, an urgent need to inculcate major reforms in the working methodology of the Police Machinery which is still a relic of British Raj.

It is highly hoped that the fate of the Verma Committee's comprehensive recommendations would not be similar to that of Reports of Justice VS Malimath Committee on reforms in our Criminal Justice System (2003) and by Prof. (Dr) NR Madhava Menon Committee on Draft National Policy on Criminal Justice (2007) which have been lying in the dust for years although during all these years, the sex-related crimes and offences have increased manifold and alarmingly.

Although in toto the implementation of the Verma Committee report is a distant dream, at least it is expected that the Criminal Law (Amendment) Bill, 2012 presently pending before the Department Related Standing Committee of Home Affairs for due examination and report would be suitably amended or else re-drafted so as to incorporate noteworthy suggestions of the Verma Committee which has done a commendable job by presenting its report within less than a month of its constitution after perusing over 80,000 odd responses received from various quarters of the civil society.

Although the incorporation of the above referred suitable amendments in our substantive criminal law viz. IPC is the need of the hour so as to further tighten the noose around perpetrators of sexual violence and other sexual offenders, it would be much more appreciable if a special statute on the lines of Protection of Children from Sexual Offences Act, 2012 is enacted which broadly defines various types of sexual offences primarily against women coupled with prescription of due punishment for the same i.e . categorization of sexual offences according to their degree.

Such special legislation ought to incorporate different heads of sexual assault notably against women according to their nature viz. non-consensual/consensual penetrative sexual assault including in aggravated form, sexual assault (non-penetrative) including in aggravated form, various forms of other sexual harassment/molestation inflicted upon women including subjecting someone to sexual assault for pornographic, voyeurism or allied purposes, etc.

Pertinent to mention that various countries have got such special statutes notably the UK, the country from where we inherited our IPC, which enacted the Sexual Offences Act in 2003. This statute is a far-reaching reform intended to mark a fresh start in the criminal law's response to sexual misconduct in the society and to bring it in line with contemporary attitudes.

Furthermore, although our Parliament can enact or suitably amend a law so as to make it more stringent in line with contemporary needs and challenges, ultimately it is the duty of our Criminal Justice Machinery which includes Police, Prosecution and Judiciary to reap its real benefits. All of them must be imparted suitable courses in Gender Sensitization as it is sine qua non for making our system of Administration of Justice victim-friendly in case of hapless female survivors of gruesome incidents of sexual assault.

Next, the investigation of a rape or sexual assault need to be done expeditiously with usage of latest methodology/ investigative techniques without loss or damage of any incriminating evidence and preferably by women investigating officers as owing to their gender they can better understand the trauma being felt by a female victim/survivor and accordingly obtain her statement(s) in a more humane manner.

As both the Criminal Law (Amendment) Bill, 2012 as well as the Verma Committeee suggest recording of an information/statement by a woman police officer if given by a woman being subjected to sexual assault, it would be highly appreciable if the investigation into such offence(s) is delegated to specially constituted Anti-Rape/Sexual Offences Cells comprising highly trained and professional female investigators. For realization of the same, even suitable amendments carried out in relevant police manuals/procedure would suffice.

Then the prevalent method of medico-legal examination of a victim of sexual assault, which has invited sharp criticism from various quarters including the Verma Committee, should be rather conducted in much humane and scientific manner so as to subject the alleged victim to minimum degree of further trauma and humiliation. The Medical Council of India (MCI) needs to act and prescribe suitable guidelines to medical fraternity in this regard urgently in line with the best global practices.

Further, if the prosecution in all such cases is carried out in a highly efficient and professional manner by specially-trained Public Prosecutors well versed in female psychology and above all if specially constituted Sexual Offences Courts (adopting fast-track approach) headed by Women Judges are constituted in every nook and corner of the country, the conviction rate would surely improve considerably so as to act as a deterrent for those who often dare to commit such heinous crimes owing to our slow justice delivery system.

Finally, it can be concluded that in the current grim scenario, both the State as well as the Civil Society ought to rise to the occasion so as to adopt a mutual supplementary multi-dimensional and zero-tolerance approach to effectively curb each and every type of sexual assault/violence in our society.

(Print Version)
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