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A Brief Commentary on Verma Committee Report on Criminal Law

Amendment with Special Reference to Crime Through Digital Medium

Article · April 2013

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 A brief commentary on Verma Committee Report on criminal law amendment with

special reference to crime through digital medium

By Debarati Halder

Introduction

After the brutal gang rape of a 23 year old paramedic student in New Delhi last
December, India woke up to a hard reality about crime and safety of women. On the
night of 16th December, 2012, this victim along with her male friend were allured in to a
public bus which was empty except for the driver and his five companions none of whom
were actual passengers.[1] This kind of incidence is not new, but the after effect of the
Delhi gang rape made it different from other gang-rape cases in India. The huge range
of protests by various civil society groups pressured the government to (i) review the
existing laws meant for punishing the sexual assault and rape of women, (ii) set-up a
separate commission for the same and (iii) review the role of the police in securing safety
of women. Resultantly, a separate committee was framed in January, 2013 to review the
legal situation and propose new laws if necessary. This committee, presided over by
Justice Verma presented the Verma Committee report in early February, 2013, which
researched the reasons for failures of the law to secure the safety of women and the
lacunas in the existing laws and system, also proposed the inclusion of laws regulating
stalking including cyber stalking and voyeurism in its agenda. It may be noted that
while the Indian Penal Code had provisions to regulate sexual assaults for the purpose
of outraging the modesty of women in S.354 of the Indian Penal Code , rape and
punishment for rape under S.375 IPC and under various provisions in the series of
S.376 (including Ss.376 A,B,C,D), and verbal gestures to harm the modesty of women
and breach of her privacy under S.509 IPC, there was no provision to deal with stalking
or voyeurism targeting women in any legal provision in India; including the Information
technology Act, 2000(amended in 2008), which is used for regulating offences done with
digital technology or against computers, computer network etc. It may be noted that in
India, literature on cyber stalking is not rare, but there are fewer studies on the issue as
compared to the US or UK[2]. Legal confusion centring on the term had been one of the
main causes for this lacuna[3]. Similarly, even though there is some research on online-
pornography targeting adult women[4], the creation of fake profiles of women[5] etc., the
issue of voyeurism also has not been properly addressed in India. Based on the Verma
Committee report, the Criminal law ordinance, 2013 was created, which was very
recently introduced as Criminal Law Amendment Bill, 2013 in the Indian parliament[6].

In this short note, I aim to discuss the out-come of the Verma Committee report
on crimes against women especially when committed with a digital aide. This short note
will be divided into three main subheadings including the introduction chapter. The
second chapter will deal with the practical outcomes of the Verma committee report
emphasising crime against women through or with the aid of digital technology and the
third chapter will provide a conclusion.

Practical outcomes of the Verma Committee

It may be noted that prior to the Verma committee, we had several legal provisions
ensuring the equality of women and equal protection of women that were enacted in our
constitution ; for example, the right to equality before law under Article 14, the right
against discrimination based on gender under Article 15, Special facilities for women
under Article 15(3), the right to equal opportunity for public employment under Article
16 , freedom of speech under Article 19, Right to life, liberty and dignity under Article 21.
Directive principles under Article 38,39(a) and 39A, 42 by which the State can make
laws for the welfare of different sects of citizens including women and Right to property
under Article 300A. The effects of such codified rights can be seen in three perspectives:
(i) the recognition of international conventions on human rights and gender equality; (ii)
the creation of several procedural laws including provisions in the IPC and Cr.P.C
prohibiting sexual and moral violence ; and (iii) the birth of several other substantive
laws to protect women’s rights. In reality the effect and subsequent results of these
codified rights can be divided into positive and negative. The positive may include two
important socio-legal improvements, which may include but are not limited to
recognition of women as more than second class citizens in India and realizing the need
to move further from the first wave feminist movement[7] by the stake-holders. The
negative result on the other hand, can be seen in the broken attempts to embrace second
wave feminist movement[8] by the stake holders. The Verma committee report on
amendments to criminal law revealed the pitfalls of the social as well as criminal justice
system which encouraged the violence against women either directly or indirectly[9].

The primary focus of this particular committee remained on recognising sexual

offences against women in India and increasing the punishment especially for rape on
demand from various civil society groups and women’s groups in general. But the
Committee while researching the issue of sexual harassments of women holistically also
developed concepts of stalking and voyeurism, the definitions of which needed legal
recognition for too long[10]. The Committee had rightly observed that stalking along with
rape, sexual assault and even teasing are matters of grave concern and all of these are
being tolerated by the society for long. Even though the report emphasised stalking
majorly from offline stalking perspective, in its conceptualisation it included offline as
well as online stalking as punishable offence in S.354C (1), which the Committee
recommended for insertion in the Indian Penal Code. The definition of stalking as has
been introduced by the Committee runs as follows:
 “Whoever follows a person and contacts, or attempts to contact such person to foster
personal interaction repeatedly, despite a clear indication of disinterest by such
person, or whoever monitors the use by a person of the internet, email or any other
form of electronic communication, or watches or spies on a person in a manner that
results in a fear of violence or serious alarm or distress in the mind of such person,
or interferes with the mental peace of such person, commits the offence of stalking.”
It could be seen that this definition had adopted the concept of stalking which has been
preferred by US lawmakers[11]. It may be noted that in 2010, I along with
Dr.K.Jaishankar had developed a functional definition of cyber stalking on the basis of
the US laws which also emphasised upon breaching of privacy as the main component
part of stalking[12]. However, the Committee report added three exceptions to this clause
when the act would not be considered as stalking[13].

Simultaneously, the committee also introduced a formal definition of voyeurism,

which runs as follows:
“Whoever watches a woman engaging in a private act in circumstances where she
would usually have the expectation of not being observed either by the perpetrator,
or by any other person at the behest of the perpetrator shall be punished on first
conviction with imprisonment of either description for a term which shall not be
less than one year, but may extend to three years, and with fine, and be punished
on a second or subsequent conviction, with imprisonment of either description for a
term which shall not be less than three years, but may extend to seven years, and
also with fine.”
This definition is formulated in S.354B, which the committee proposed to insert
in the Indian Penal Code. The explanations added to this clause proved to be extremely
necessary in the relevant times as it lifts the burden of proof from female victim in case
of consensual sexual activities when her images would have been captured in a
voyeuristic manner[14].
The committee reports and proposals have been accepted by the Indian
Parliament with some reservations. While it comes to cyber crime against women, it can
be seen that the latest Criminal Law Amendment Bill, 2013 which was passed by the
Parliament in late March to bring in the actual amendments to the Indian Penal code
as proposed by the Verma committee Report have accepted the definition of stalking
with a major modification to make the offence more women oriented. The renewed
definition and the penal provision for stalking, which was inserted in Section 354D in
the Criminal Law Amendment Bill, 2013, made it non-bailable for repeat offenders
making the jail term for a maximum period of five years. Similarly, in Section 354C,
voyeurism was also made non-bailable for repeat offenders; making the jail-term
increased to a maximum of seven years[15].
Conclusion
The Verma Committee Report on criminal law amendment proposed to bring in
necessary and thoughtful changes in the criminal law in India for the safety of women.
But this committee report stands apart from other law committee reports that were
made earlier in India to bring in various changes to legal clauses especially because it
recognised crimes that can be done through digital media. Holistically it had provided
more reliance on therapeutic jurisprudence for restituting sexual assault crimes against
women. The committee report and its outcome with reference to cyber crimes against
women should attract more research in the near future. It offered for the first time a
therapeutic perspective not only for the offline sexual offences against women, but also
for crimes committed through digital media by recognizing the need for more severe
punishment, rectifying circumstantial issues which may aide in victimization of women,
better reporting portals including e-governance for fast reporting, and a ‘women
caregivers for women victims’ concept. This concept of women caregiver includes a
‘positive circle’ constituted by women professionals including police officers, lawyers,
NGO personnel, doctors, women activists etc. However, it must be remembered that the
amendments made on the basis of the report still need to be tested by the courts. Only
when the proposals offered by the Report including those for regulating crimes done
through a digital medium, are properly introduced and executed, can the aim of the
Verma Committee be fulfilled.

DebaratiHalder is the Managing Director for Centre for Cyber Victim Counselling
(www.cybervictims.org).

Bibliography

1. See Sunetra Choudhury, Amanat’s Case: her friend asked to testify on police lapses
today( January 30,2013,

2. For example, see See Jaishankar & Umashankary, Cyber stalking: global menace in
the information super highway.

3. Halder, D., &Jaishankar, K. (2010). Cyber Victimization in India: A Baseline Survey

Report. Tirunelveli, India: Centre for Cyber Victim Counselling.

4. For example, see Sharmila Joshi, Untangling the web: the internet and violence
against women, in BishakhaDutted, 9 degrees of Justice, Zubaan,2010, pg 114-149, Also
see Pgs 19-33, 113-124 in Halder D., &Jaishankar, K. (2012) Cyber crime and the
Victimization of Women: Laws, Rights, and Regulations. Hershey, PA, USA: IGI Global.
ISBN: 978-1-60960-830-9

5. ibid

6. This Bill was introduced to the Indian parliament on 15th March, 2013

7. First wave feminist movement started in the late 18th and spread across in the first
half of 20th century to emphasise upon women’s suffrage especially. For more
information, see pg. 20, Letty Conrad(2001) Third Wave feminism: A case study of
BUST magazine, Available @ http://grrrlzines.net/writing/Conrad_thesis.pdf. Accessed
on 18.01.2013

8. Second wave feminism emphasized upon women’s rights regarding sexuality, family,
workplace, legal-inequalities, reproductive rights etc. For more information see
Christina Hughes (unknown), Second wave feminism .Available @
http://www2.warwick.ac.uk/fac/soc/sociology/staff/academicstaff/jonesc/jonesc_index/teac
hing/birth/second_wave_feminism.pdf. Accessed on 10.02.13

9. The report is available

@http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.
pdf. Accessed on 01.03.2013

10. See pg 1 of the Verma committee report

11. In 2010, while developing a functional definition of cyber stalking, I along with Dr. K.
Jaishankar observed as follows: “In real life stalking if we analyze the US laws on
stalking, the nearest explanation of cyber stalking could be found in Violence Against
Women and Department of Justice Reauthorization Act of 2005 which amended
Communications Act of 1934 (47 U.S.C. 223(h)(1)) through Section 113 to include the
use of any device or software that can be used to originate telecommunications or other
types of communications that are transmitted, in whole or in part, by the Internet for
the purpose of ‘stalking’ , annoying and harassing others as penal offence. This US
provision attempts to explain cyber stalking as follows;
Cyber stalking= following the victim’s internet activities + using digital device, software
to create harassing, threatening , abusing mails/messages etc + transmitting the said
mail to the victim’s inbox and / or victim’s friends or relatives inboxes + successfully
creating fear, annoyance, irritation harassed feeling in the victim. This explanation can
be found in Halder, D., &Jaishankar, K. (2010). Cyber Victimization in India: A Baseline
Survey Report.Tirunelveli, India: Centre for Cyber Victim Counseling.

12. This functional definition is as follows: “In one word, when ‘following’ is added by
Mensrea to commit harm and it is successfully digitally carried out, we can say cyber
stalking has happened.’ See ibid

13. These are::

i. if the person who pursued it shows that it was pursued for the purpose of preventing
or detecting crime and the person accused of stalking had been entrusted with the
responsibility ofprevention and detection of crime by the state; or, ii.that it was pursued
under any enactment or rule of law, or to comply with any condition or requirement
imposed by any person under any enactment; or, iii. that in the particular circumstances
the pursuit of the course of conduct was reasonable
14. Explanation 1 to the clause says: “'Private act', in the context of this provision, is an
act carried out in a place which, in the circumstances, would reasonably be expected to
provide privacy, and where the victim's genitals, buttocks or breasts are exposed or
covered only in underwear; or the victim is using a lavatory; or the person is doing a
sexual act that is not of a kind ordinarily done in public.” Explanation 2 of the clause
 say : “If the victim consented to capture of the images or other material, but not
to their dissemination to third persons, such dissemination shall be considered an
offence within this section.”

15. The criminal law Amendment Bill, 2013 is available @

http://164.100.24.219/BillsTexts/LSBillTexts/PassedLoksabha/63C_2013_En_LS.pdf.
Accessed on 21.03.2013

16. The concept of “positive circles” for restorative and solution –focused interventions
was described by Lorenn Walker in her plenary speech titled “How restorative and
solution-focused interventions can be used to address crimes and offences against and by
youth” in the 2nd international conference of South Asian Society of Criminology and
Victimology on 12th January, 2013 at Kanyakumari, Tamil Nadu, India.

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