Note from the Communist Party of India (Marxist) On Amendments to Relevant Laws and Measures to Deal with Sexual Assaults & Violence against Women
This is in reference to the public notice issued by the Government
of India regarding the formation of the Committee under the Chairmanship
of Justice Verma to suggest possible amendments in the “ criminal laws
and other relevant laws for quicker trials and enhanced punishment of
criminals accused of sexual assault of an extreme nature on women.”
We believe that a much more holistic approach is required and
regret that the terms of reference are limited only to these two issues.
The Committee had been set up in the wake of the heinous crime of
extreme brutality including gang rape committed on a young para medical
student in Delhi. Subsequently, the young woman succumbed to the
injuries inflicted on her. This particular case of gangrape and murder
would certainly fall in the category of “rarest of the rare” cases.
Within the existing legal framework itself the sentence could be the
death penalty for the criminals for which there are already legal
precedents.
However in a situation where crime against women and in particular
the crime of rape is the fastest growing crime it is essential for the
Government to review the present laws and the proposed amendments so as
to cover all the major aspects. In this context we would like to draw
your attention to the Bill introduced in the Lok Sabha on October 19,
2012, which seeks to “amend the IPC, the CrPc, 1973 and the Indian
Evidence Act” in so far as it concerns rape and sexual harassment of
women (henceforth referred to as the Bill). Some of these proposals are
flawed. It will amount to the application of double standards to the
crime of sexual harassment and assault on women if only clauses
pertaining to a particular type of sexual crime are considered for
improvement while the law remains weak and ineffective on a range of
other issues connected with sexual crimes. We would also like to point
out that in a society based on class and caste inequalities, women of
the economically exploited and caste oppressed sections, particularly
dalits and tribals are even more vulnerable to sexual assault. We
therefore seek your indulgence in accepting this memorandum which deals
with issues which we consider are germane to the prevention of and
punishment for cases of rape and cases of sexual assault and harassment.
1. Clauses in the IPC and other relevant laws concerning sexual
assault have to be gender specific not gender neutral as proposed in the
Bill referred to above. It is a total trivialization of the issue of
sexual assault on women to suggest that it is a gender neutral crime.
Thus the amendments moved to sections in the IPC namely 375, 376,376A
376B, 376C and 376D to make them gender neutral must be withdrawn. We
hope you will make this recommendation.
2. The Bill widens the definition regarding sexual assault which is
welcome. However it falls short in enhancement of punishment. The
Bill proposes amendments in Sec 375.2 (a to l) in the redefined clauses.
The perpetrators of the crime in these sections are men who are public
servants such as police personnel, management of staff of jails, other
institutions etc. This list should be expanded to include army men,
paramilitary forces. Sexual assault committed by them should be
considered as Aggravated Sexual assault. Aggravated sexual assault
should include gangrape, custodial rape, child rape, rape during
communal or caste driven violence, rape of a woman suffering mental or
physical disability, sexual assault which causes grievous bodily harm or
disfigurement.
3. In such cases of aggravated sexual assault/rape the punishment should be rigorous life imprisonment till death.
(Where the sexual assault is accompanied by other forms of violence
leading to the death of the victim, the rarest of rare categories,
which could include the death penalty, may be applied by the courts.)
4. In other cases of rape the maximum sentence should be life
imprisonment. It is found that courts rarely give the maximum sentence.
It is therefore essential to increase minimum sentences in all cases of
sexual assault from the existing level which are only seven years for
rape and ten years for aggravated sexual assault/rape. The present legal
framework also permits courts to further reduce the sentence to even
less then the minimum in the name of extenuating circumstances. This
must be prohibited.
5. The critical issue is the requirement for time-bound processes
of justice in all cases of rape. The law must specifically mention the
formation of special fast track courts for all cases of rape.
6. In all cases of sexual assault the case must be completed within three months.
7. Since our proposal is for speedy justice, the accused must by
law continue to remain in jail till the verdict is pronounced. No bail
can be granted to a rape accused while the hearings are on as the entire
process will be time-bound.
8. Public servants not implementing the law including timely filing
of FIR should be punished with a minimum punishment of one year and
fine which may extend to three years. In the proposed amendment on this
issue in the Bill there is no minimum prescribed.
9. There must be rehabilitation measures including financial help
mandated by law for victims of sexual assault which should be decided
according to the requirements. It is humiliating and insulting to women
when so-called rape compensation packages are declared such as 20,000
rupees etc. by some State Governments. The rehabilitation should include
medical expenses and also may also include a Government job.
Counselling and other help must be mandatorily provided.
10. Acid attacks on women are a fast growing crime. A new clause is
sought to be introduced in the Bill under Sec 325 B. Depending on the
extent of injury the law must provide for life imprisonment while the
minimum sentence must also be enhanced. The law must provide for medical
rehabilitation.
11. Sec 354 and 509, which contains such archaic terms as
“outraging the modesty of a woman” must be redrafted to specifically use
the term sexual harassment and the punishment enhanced. Sexual
harassment has nothing to do with the modesty of a woman and everything
to do with impermissible sexual behaviour and assertion of power by the
criminals. The sentence should be enhanced to a minimum of one to five
years depending on the degree of harassment, whether verbal, physical
etc. and also a fine imposed. Serial offenders should be punished with
the maximum.
12. In this connection steps are required to prevent the broadcast
or publication of demeaning and highly sexist advertisements that tend
to commodify women’s bodies. With the wide reach of satellite channels
these advertisements promote aggressive misogynist cultures. The
relevant rules and laws must be amended to prevent such advertisements,
since on this count, self-regulation has failed.
13. The law must mandate the setting up of a monitoring mechanism
to audit the steps being taken by various Government agencies to
prevent, control and punish those involved in sexual crimes against
women including minors. An annual report of the monitoring mechanism
must be made public.
14. The legal framework against sexual crimes must make it
mandatory to include in all educational syllabuses in schools and
colleges, gender sensitization courses for boys and girls, men and
women. This is essential to change the thinking of a predominantly
male-child preference based society along with culturally sanctioned
retrograde male privileges.
15. In spite of the surge in so-called honour crimes the Government
has failed to bring any stand alone law for the purpose. The illegal
fatwas of Khap Panchayats are a case in point. These diktats range from
fatwas on dress codes for young women and school girls, to bans on
friendships, self choice partnerships, the punishment also ranging from
boycotts to public lynching and killings. Narrow vote bank politics has
influenced Governments leading to inaction and even encouragement to
these self-proclaimed panchayats in spite of repeated instruction for
action from various courts including the Supreme Court. We request the
Commission to recommend a stand alone law to cover all honour related
crimes and to take strict action against the diktats and their
enforcement by the so-called khap panchayats including their
disenfranchisement.
There are other flaws in the Bill and the legal framework which
need to be addressed and which have been raised by women’s
organisations.
Administrative Steps
Along with the legal framework, it will also be necessary for the
Government to urgently take administrative steps. One of the critical
issues is to make public spaces safe and secure for women at all times.
This must include all forms of public transport. With the privatisation
of transport systems, the accountability of the Government has been
diluted and no action is taken against private bus owners. For example
even now many buses in Delhi have black tinted windows. Strong
regulations for security must be ensured and accountability fixed
including punishment for officers guilty of non-implementation. Mapping
of vulnerable areas in the city and towns must also be a regular
procedure to be followed. Specifically, provision for public toilets
for women must be made and the area be properly lit.
For fast track courts to be set up, it is essential for the
Government to recruit a large number of judges at various levels.
Recruitment must go hand in hand with strict standards of the quality of
the recruitment. Judges often reflect retrograde social outlooks
towards women. Thus gender sensitive standards must be set for such
recruitments.
It will also be necessary to recruit many more women police
personnel to be able to speed up the investigations and be involved in
help-lines etc. and training courses are required for this
It is essential for the Central Government and the State
Governments to work out standard operating procedures which should
immediately come into place once a complaint of sexual harassment and/or
rape is reported.
We are aware of the far reaching recommendations you had made for
legal measures against sexual harassment at the work place.
Unfortunately not only has the Government diluted or subverted some of
those important recommendations but it passed the Bill without
discussion in the lower House while it is yet to be placed before the
upper House. We mention this only because of our anxiety that without a
comprehensive report on the issues connected with sexual harassment and
assault, Government may find a short cut to ignore the issues which will
be of great disservice to women and girls in particular and the society
at large. It is with the request that the Committee take note of the
wider issues involved that we submit this memorandum to you. The urgent
requirement is to reform the laws and take urgent administrative steps
to do justice to the brave young woman whose life was brutally cut short
and also the countless others who have been victims of sexual assault
and are yet to get justice.
