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Submissions for the Justice Verma Commission on Sexual Violence

Justice for Amanat – The Way Forward:
Inputs from: Sumit Katyal, Nitin Bali and Sumit Chitkara

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The quest for justice for Amanat has led us to share our thoughts on how to strengthen the system so that no one else has to face the barbarity – EVER AGAIN. The approach needs to be comprehensive and needs to focus on the following aspects  Governance Provisions o Broaden the definition of rape from its current definition of peno-vaginal penetration to include all types of penetration including objects, digits, foreign bodies in any orifices and assault of any kind which is sexual in nature which includes stripping, parading, mutilation etc and /or uses criminal force. The definition of rape needs to factor in one fundamental truth, and that is, it violates a woman’s fundamental right to equality and dignity o Sexual Violence should be defined within the contemporary human rights language o Any legislative reform on sexual violence must ensure that the Vishaka Law is implemented in letter and spirit without any effort by the Government to dilute the innovative elements. o Provide legal aid to the complainants o Since sexual assault violates a woman’s fundamental right to equality and dignity, the state compulsorily has to provide ―Exemplary Compensation‖ for the physical, mental, emotional, well-being and economic loss suffered by the complainant. It is imperative that effective counselling should be provided to the complainant to overcome the trauma. o Time bound disposal of sexual assault cases. Maximum of 3 months per court of appeal. o Train civic bodies to understand concept of security in public spaces. o Crime of sexual assault to be considered a spectrum or continuum and graded as per the seriousness and aggravating circumstances. As per the grade, minimum punishment should be for seven years and maximum for life imprisonment (solitary confinement with no parole). o Introduce stringent laws for stalking. o Bring concept of world class street-lighting, CCTVs across cities, especially in economically weak areas of the city. o CCTVs and GPS should be mandatorily installed in buses. o Public transport operators should be given permits only when the governing bodies certify the worthiness of the operator in terms of safety and security. o "Gender equality education" at all levels of the justice system should be made mandatory – The scope includes health, law enforcement, judges, lawyers, medico-legal support, civil society etc. Gender sensitivity during trial is a must along with a sensitive method of investigation. Training of judges on laws relating to gender violence is important and should be achieved by means of continuous training and procedure manuals.  Enabling Provisions o This would include incentivising good behaviour (e.g. introduction of the Good Samaritan Law). o Don’t stigmatise the complainant, stigmatise the perpetrator. o Make complainant gender neutral but perpetrator of violence has to be gender specific i.e. male o Focussed and continuous attempts to sensitise the politicians, judiciary, police and the public at large.

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Submissions for the Justice Verma Commission on Sexual Violence
− Aggressively train the frontline - the government physicians, the constables and SHOs as well as the secondary line of defence - the petty bureaucrats, the support workers at shelters and counselling centres etc. o Have a comprehensive review of our education system with a focus on sensitising the children on what constitutes inappropriate behaviour. Sex education needs to be mandatorily introduced at the appropriate age in schools to remove the so called taboos and foster equality and respect. Showing children early on that people of other gender, other castes, and religions are equal needs to be central to our education system. We must educate people, starting at the school level, about respect for women, for personal spaces and for the rule of law. o The cultural norm has to include respect for women, not only as subservient or in roles some think appropriate for them, but in any role that they choose, whether in a sari or a mini-skirts. o Involve the citizenry at large in outreach programmes such as the citizen warden programme initiated by Kiran Bedi. o Introduce the concept of Civil Defence. o Start massive campaigns of public awareness, including hiring street mimes to embarrass people indulging in bad behaviour, not to mention handing out football style yellow and red cards. o Heavily publicise the impact of skewed gender ratios. Applaud and incentivise districts/areas which show a marked improvement in the sex ratio or in their attitude towards women (decrease in female infanticide, dowry deaths, increase in widow remarriage etc.) o Involve males in formulating long term long lasting solutions to this menace plaguing our society. o The law should be clear and consistent in its tone and tenor. It needs to be easily understood and should use technology to ensure that access to justice is not denied to the deserved. o The process should encourage inclusive drafting of the law at final stage- where people and practitioners are involved so that the law becomes something we own and not something to which are rights are ransomed due to impersonal legalese. o Training and sensitisation of medical professionals handling sexual assault cases. This should include − Formal training of physicians in dealing with complainants − Certification of nurses − Trained counsellors and their consistent availability before and after the medical examination is done. Police Reform Provisions o Immediately implement the 8 reports on Police reforms by various committees starting from 1979 o Immediately separate the investigative and the law and order wing of the police. The investigative tasks of the police should be beyond any kind of intervention by the executive or non-executive. o Enhance the facilities for forensics in the cities. Invest and Invest some more in modern technology o Sharing of sex offenders’ database with all the police stations. This list should be regularly tracked and updated. This list should be tracked by the name of the offender, the kind of crime committed, city of origin, family details etc. Make integration of criminal databases across the country mandatory. This list should be in public domain; o An independent regulator should be set up by the government to audit the performance of the police on various parameters. The regulator should have an in house analytical

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Submissions for the Justice Verma Commission on Sexual Violence
capability to analyse the failure to secure convictions. They would then suggest appropriate remedial measures which should be executed in a time bound fashion. − Community review of police investigations into sex offences right up to the lowest level to track investigations independently. o Non registration of crime should be made an offence for police officials. FIR should be filed immediately. Delay/refusal in filing should result in the suspension of the station I/C. Further non compliance should result in jail term/fine and administrative actions for derelict officers. o Visible round-up of molesters in public areas. o Have all women patrols man and carry out intensive checks in less accessible areas (like areas with heavy student population, deserted areas, poorly lit areas, malls etc.). o Urgently implement the SC-mandated police reforms in each state. o Case workers to be attached to the complainant of sexual assault at all police stations. o Stringent efforts to be made to ensure timely collection and preservation of evidence. o Police public relations are unsatisfactory. The police organisation’s poor image stems from police partiality, corruption, brutality and failure to register cognisable offences. o The way that junior police behave towards the public is influenced by the way they are treated by senior police. The way that police treat one another should be reformed. o Identified performance indicators (mentioned below) should be used to evaluate organisational performance − Operational efficiency; − Public satisfaction; − Complainant satisfaction (both in terms of police investigation and response); − Accountability; − use of resources; and − Human rights record. Legislative Provisions  While mandatory fast-track courts for crimes against women in states is important, it is imperative to note that mere speed does not ensure a gender equal outcome. Hence we propose that all courts be referred to as ―Equality Courts‖ and so each step in the process is then measured against equality rights being upheld as opposed to "speed"  Legalise prostitution  Exemplary Compensation to be given to the complainant. The onus for it has to be on the STATE.  In case of sexual assaults (under Sec 354,375,376 (1) / (2) and 376 A and B,, the age definition for juveniles should be lowered from 18 years to 15 years.  Appoint meritorious public prosecutor to fight sexual assault cases. They must be trained to conduct gender-just trial.  Frivolous adjournments should be stopped by the court  Politicians who make anti-women statements be suspended  Further amend the Criminal Law Amendment Bill – 2012 by taking the following suggestions into consideration Page 2 Section 326 A (Hurt by acid Attack) Proposed Amendment in Parliament Whoever causes permanent or partial damage or deformity to, or burns or maims or disfigures or disables any part or parts of the body of a person or causes grievous hurt by throwing acid on or administering acid to that person, with Suggested Amendment Compensation  Revising the fine to at least INR 20 Lacs, along with confiscating the assets of the perpetrator and transferring it to the complainant. The

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Submissions for the Justice Verma Commission on Sexual Violence
the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may be for life and with fine which may extend to ten lakh rupees Provided that any fine imposed under this section shall be given to the person on whom acid was thrown or to whom acid was administered. maximum amount will be dependent upon the economic impact on the complainant coupled with the social impact.  In case the complainant succumbs to the attack, then the compensation should be given to the legal heirs Rehabilitation  Bearing the full cost of rehabilitation (This would include all attendant surgeries, hospitalisation etc.)  The compensation needs to be paid within 30 days of the final judgement.  50% of the compensation needs to be deposited immediately Time Limits  Each court will have 3 months at the maximum to dispose of the appeal  This also implies that the police has to record the statement immediately and insure that the chargesheet is filed within 10 days of the FIR. Failing to do so will attract and adverse report in the CR of the SHO. Also, it will attract a penalty of INR 5,000 per day of delay for which the SHO is liable Final Liability  In case the perpetrator is unable to bear the costs, the STATE shall be liable to pay the entire compensation For the purposes of the law Sec 326 will be treated equivalent with that of an actual attack) Punishment  10 years Compensation  Compulsory fine. Min Amount = INR 10 Lacs Time Limits  Each court will have 3 months at the maximum to dispose of the appeal  This also implies that the police has to record the statement immediately and insure that the charge sheet is filed within 10 days of the FIR. Failing to do so will

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Sec 326 B (Attempt to throw or administer acid)

Whoever throws or attempts to throw acid on any person or attempts to administer acid to any person, with the intention of causing permanent or partial damage or deformity or burns or maiming or disfigurement or disability or grievous hurt to that person shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years and shall also be liable to fine

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Submissions for the Justice Verma Commission on Sexual Violence
attract and adverse report in the CR of the SHO. Also, it will attract a penalty of INR 5,000 per day of delay for which the SHO is liable Final Liability  In case the perpetrator is unable to bear the costs, the STATE shall be liable to pay the entire compensation Suggested Amendment Deleting the words ―outraging her modesty‖ with the words ―Sexual Violation‖ since words such as eve teasing and outraging of modesty are belittling. Punishment  2 years to life imprisonment based on the severity of the crime Compensation  Min INR 2 Lacs to INR 50 Lacs (Maximum) depending upon the severity of the crime

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Section Sec 354 (Assault or criminal force to woman with intent to outrage her modesty)

Proposed Amendment in Parliament In section 354 of the Penal Code, for the words ―shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both‖, the words ―shall be punished with imprisonment of either description for a term of one year which may extend to five years and shall also be liable to fine which may not be less than one thousand rupees‖ shall be substituted

Addendum: The above provisions would apply for cases where other objects are used with the same intent as that of throwing acid 4 3 Sec 375 A person is said to commit ―sexual To include clause (d) as below (Definition of assault‖ if that person—  Undressing a woman Sexual (a) penetrates, for a sexual purpose, the forcefully (without her will) Assault) vagina or anus or urethra or and parading her naked mouth of another person with— publically. (i) any part of the body including the penis  Clause (e) would also include of such person; or ejaculation on any part of the (ii) any object manipulated by such body of the complainant person, except where such penetration is (since ejaculation is the carried out for proper hygienic or medical ultimate act of sexual purposes; intercourse, actual (b) manipulates any part of the body of intercourse is immaterial ): another person so as to cause Refer to the case of Koppula penetration of the vagina or anus or Venkat Rao vs State of AP urethra or mouth of such person by any (March 10, 2004) part of the other person’s body;  Marital Rape to be included (c) engages in ―cunnilingus‖ or ―fellatio‖ in the definition. The clause Exception: Sexual intercourse or of age should be dropped. sexual acts by a man with his own Exception to be dropped. wife, the wife not being under sixteen years of age, is not sexual assault  Attempt to rape would invite the relevant clauses under IPC (376/511) 5 3 Sec 376 (1) Punishment Whoever, except in the cases provided for (Punishment by sub-section (2), commits sexual  Min 14 years to life for sexual assault shall be punished with imprisonment based on the assault) imprisonment of either description for a severity of the crime term which shall not be less than

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Submissions for the Justice Verma Commission on Sexual Violence
seven years but which may extend to imprisonment for life and shall also be liable to fine.  For extremely aggravated sexual assault cases, there will be solitary confinement with no option of a parole.  The word fine should be replaced with the words ―EXEMPLARY COMPENSATION‖. The min compensation in any case would be INR 50 Lacs Rehabilitation  Bearing the full cost of rehabilitation (This would include all attendant surgeries, hospitalisation etc.)  The compensation needs to be paid within 30 days of the final judgement.  50% of the compensation needs to be deposited immediately Final Liability  In case the perpetrator is unable to bear the costs, the STATE shall be liable to pay the entire compensation Suggested Amendment Anyone in a position of responsibility, authority/trust will fall in the category of sexual assault. We suggest avoiding a laundry list as this will be an ―exclusive list‖, whereas it should be INCLUSIVE. However, in the event that it is not added we propose the addition of the following clauses Substitute clauses (i) to (iii) or add the below mentioned clause as (iv)  Rape by a police/paramilitary personnel, irrespective of the location, would be treated as custodial rape  Add point (m), which includes sexual assault at workplaces (both public sector and private sector) Punishment  Min - life imprisonment based on the severity of the crime  For extremely aggravated sexual assault cases, there will be solitary confinement with no option of a parole.

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Section Sec 376 (2)

Proposed Amendment in Parliament (a) being a police officer, commits sexual assault — (i) within the limits of the police station to which such police officer is appointed; or (ii) in the premises of any station house; or (iii) on a person in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or

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Submissions for the Justice Verma Commission on Sexual Violence
 The word fine should be replaced with the words ―EXEMPLARY COMPENSATION‖. The min compensation in any case would be INR 50 Lacs. The explanation would include read as follows: or any kind of institution for women/children including hostels, crèches, day care etc.

Explanation 1.—For the purposes of this sub-section,— (a) ―women’s or children’s institution‖ means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children; Addition of Explanation 3

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Sec 376 A (Sexual assault by husband upon his wife during separation)

Whoever commits sexual assault on his own wife, who is living separately under a decree of separation or under any custom or usage, without her consent, shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may extend to seven years and shall also be liable to fine

Explanation 3: In case of rapes during events like riots etc, the responsibility will be that of the police To be treated as an assault case like Sec 376(1). The suggestions are as below Punishment  Min 14 years to life imprisonment based on the severity of the crime  For extremely aggravated sexual assault cases, there will be solitary confinement with no option of a parole.  The word fine should be replaced with the words ―EXEMPLARY COMPENSATION‖. The min compensation in any case would be INR 50 Lacs Rehabilitation  Bearing the full cost of rehabilitation (This would include all attendant surgeries, hospitalisation etc.)  The compensation needs to be paid within 30 days of the final judgement.  50% of the compensation needs to be deposited immediately Final Liability In case the perpetrator is unable to bear the costs, the STATE shall be liable to pay the entire

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Submissions for the Justice Verma Commission on Sexual Violence
S. No 8 Page 4 Section Sec 376 B (Sexual intercourse by a person in authority) Proposed Amendment in Parliament Whoever,— (a) being in a position of authority; or (b) a public servant; or (c) superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women’s or children’s institution; or (d) being on the management of a hospital or being on the staff of a hospital, takes advantage of the position and induces or seduces any person either in the first mentioned person’s custody or under the first mentioned person’s charge or present in the premises and has sexual intercourse with that person, such sexual intercourse not amounting to the offence of sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to ten years and shall also be liable to fine. Explanation 1.—In this section, ―sexual intercourse‖ shall mean any of the acts mentioned in clauses (a) to (c) of section 375. Proposed Amendment in Parliament ―Provided that if the information is given by the woman against whom an offence under section 354, section 375, section 376, section 376A, section 376B and section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, as far as possible, by a woman police officer.‖. Non Cognizable Offense compensation Suggested Amendment Anyone in a position of responsibility, authority/trust will fall in the category of sexual assault. We suggest avoiding a laundry list as this will be an ―exclusive list‖, whereas it should be INCLUSIVE. However, in the event that it is not added we propose the addition of the following clauses Punishment  Min 7 years to 10 years based on the severity of the crime plus appropriate fine  Explanation to include any of the acts mentioned in clauses (a) to (e) of section 375.  ―In the premises‖ to be changed to ―Any place‖

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Section Sec 154: Code of Criminal Procedure, 1973

Suggested Amendment  Shall be recorded at all times by a woman police officer.  In the absence of a woman police officer, the SP/DCP have the responsibility of ensuring the presence of one.

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Sec 166 A

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Sec 160 (CrPC)

In section 160 of the Code of Criminal Procedure, in sub-section (1), in the proviso, for the words ―under the age of fifteen years‖, the words ―under the age of eighteen years or above the age of sixty-five years‖ shall be substituted

 Cognizable and non Bailable.  Min imprisonment of 1 year and a max of 3 year plus fine.  Replace 65 years with 60 years

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