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Justice Verma Committee Report
- 1. The Justice VermaCommittee’s Report - A Summary Parvathy Prem, AID Austin Yatin Phatak, AID Dallas
- 2. Introduction December 23, 2012:A three-member Committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court, was constituted to recommend amendments to the Criminal Law, to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. The other members on the Committee were Justice Leila Seth, former judge of the High Court and Gopal Subramanium, former Solicitor General of India. The Committee interpreted its mandate broadly. A comprehensive report was submitted to the Govt. on January 23, 2013. Full text available at: http://www.thehindu.com/multimedia/archive/01340/Justice_ Verma_Comm_1340438a.pdf
- 3. Report Outline Chapter 1:Constitutionalism, Republicanism, and Gender Equality Chapter 2: Gender Justice and India’s Obligations under Intl Conventions Chapter 3: Rape and Sexual Assault Chapter 4: Sexual Harassment at the Workplace Chapter 5: Other Offences against Women Chapter 6: Trafficking of Women and Children Chapter 7: Child Sexual Abuse Chapter 8: Khap Panchayats and Honour Killings Chapter 9: Sentencing and Punishment Chapter 10: Provision of Adequate Safety Measures and Amenities Chapter 11: Medico-Legal Examination of the Victim Chapter 12: Police Reforms Chapter 13: Electoral Reforms Chapter 14: Education and Perception Reform
- 4. Ch. 9: Sentencingand Punishment Cites several SC rulings stressing need for strong deterrent punishment. Three types of sentences: Term sentences: Life sentences: Recommends changing min. from 7 to 10 years. Recommends legislative clarification that ‘life’ does not mean 14-20 years. Death sentence: SCOTUS, Furman v. Georgia: “The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.” In India: How does the law define the ‘rarest of the rare’ cases? i) Manner ii) Motive iii) Anti-social iv) Magnitude v) Personality of victim. (For murder.) Consider mitigating circumstances, ask whether other punishments are wholly inadequate. Death sentence should be an exception to the rule.
- 5. Sentencing and Punishment(cont.) Death sentence (cont.): Views expressed by majority of stakeholders: Seeking death penalty would be regressive. Notes “considerable evidence that deterrent effect is a myth”. Recommends specific provision in IPC for offence of “rape followed by death or resulting in a Persistent Vegetative State”. Minimum punishment in these cases should be life. (Despite seriousness of all rape, degree of injury to victim may vary- need gradation in severity of punishment.) On castration: Both physical/chemical castration unconstitutional, inconsistent with basic human rights treaties & progressive jurisprudence. Applicability for psychiatric treatment , with consent? (As in UK.) Research. On reduction of ‘juvenile’ age from 18 to 16: Dissatisfied with current state of juvenile rehabilitation. Calls on state to invest in reformation (as in UK, Thailand, South Africa). Brain development in adolescence as a public policy question. Not inclined to reduce age.
- 6. Ch. 10: Provisionof Adequate Safety Measures and Amenities State has a responsibility to minimise opportunities to commit crimes. Well-lit streets and common spaces are a common sense measure. Several representations mentioned lack of sanitation facilities in rural India – women forced to leave homes at night. Transport – several directives of High/Apex Courts not complied with – police failing to enforce (e.g. black-film on vehicle windows). 2009 Ministry of Home Affairs memorandum: Takes note of 8 advisories issued by Central Govt. to states, 1995-2007, to prevent violence against women. e.g. punishment for custodial violence, better investigation, counselling, special courts. Asked states to review effectiveness of measures, implement specific steps (e.g. better police patrolling, street lighting). Committee concludes that Executive is well aware of bare minimum measures to be taken. Implement!
- 7. Provision of AdequateSafety Measures and Amenities (cont.) Recommendations w.r.t. public transport: Well-lit at night. Drivers vetted, photos and details displayed clearly inside/outside bus. Police officer on board between 5.30 pm and 7.30 am. Tamper-proof CCTV’s and GPS. Track deviation from allotted routes. Hotlines (details in Appendix 6), mobile phone apps. On safe spaces/shelters for women: Sec. 6, Protection of Women Against Domestic Violence Act, 2005 (provision of shelter) not implemented. Destitute women should not be institutionalised/jailed for safe keeping. Also provide accommodation to working women lacking suitable residence. Managed in a participatory way, by residents. Access to child rights services, healthcare, centrally located, disabled access.
- 8. Ch. 11: Medico-LegalExamination Hotline – send police and an unmarked ambulance to take victim to Sexual Assault Crisis Center (nearest hospital only if emergency). Doctors legally obligated to treat victims, but wary, especially in private hospitals. Publicise duty, punish inaction. State should not harass. Sexual Assault Crisis Center: Exclusively designated space on hospital premises. Private & discreet. Should have female gynaecologist and professionally trained counsellor. Facilities to preserve forensic evidence. Victim to interact with counsellor first (subject to choice). Should be made aware of procedure, contact details of lawyers. Guidelines on medical examination: Doctors should not conclude on basis of exam whether/not rape occurred. No two-finger test or undue importance to hymen. Document only findings relevant to assault (no “habituated to intercourse”). Board of 3 doctors. Transmit report promptly via email as well as post. Guidelines on exam surroundings, manner towards victim (also A7, 8).
- 9. Medico-Legal Examination (cont.) Developguidelines for police, doctors/hospitals, courts, support services- start with Delhi HC 2009 order. Recommendations related to trial/legal proceedings: Judges carefully selected, guidelines to ensure a non-hostile environment (cites previous issued guidelines, esp. for child witnesses). Open trials except for examination in chief/cross-exam of victim – protect victim’s testimony, but allow observation of conduct of trial. Opportunity for victim to engage own lawyer – independent representation. Notes circulars directing victim be informed of bail applications by accused. The issue of consent: Courts should bear in mind that marks of struggle cannot be the only acceptable evidence. Reflected in Criminal Amendment Bill, 2012. Law Commission Report (1980) notes irrelevance of past sexual history. Failure to amend Evidence Act Sec. 115(4) to exclude the evidence of sexual relations with persons other than the accused. Also Sec. 146 and 53.
- 10. Ch. 12: PoliceReforms Prakash Singh vs. Union of India recommendations. Implementation & compliance has been poor: State Security Commissions – watchdogs, binding recommendations. DGP’s - selection criteria, w/ UPSC involvement; two-year tenure. (Can be removed in consultation with SSC if convicted in criminal cases/corruption.) Also minimum tenure for other officers. Separation of investigating police from law and order police – speedier investigation, better expertise, better rapport with people. Police Establishment Board in each state to decide all transfers, postings. Police Complaints Authority at district and state levels. Police have duty to prevent harassment of women/children in public places and on public transport. Train in accordance with guidelines. All agencies have to do their utmost to preserve life and no other jurisdictional or procedural issue can be more important. Members of public who help victims to be treated with courtesy by authorities.
- 11. Police Reforms (cont.) Policestation procedures: Should be able to register FIR at any jurisdiction; also online. Police stations should have CCTV’s – checked monthly for tampering. Separate amenities for women in stations; also waiting room for visitors. Training in investigating sexual assault cases, appropriate scientific tools. Other recommendations on policing: Review police performance measurement methods – qualitative and quantitative measures. Police welfare is often resource-stretched – constitute Welfare Bureau. Increase number of police personnel on street; increase number of female personnel on streets and in stations. Community policing – train volunteers, respected community members as Special Executive Magistrates to deal with minor offences (traffic violations, “eve-teasing”).
- 12. Ch. 13: ElectoralReforms Concern for integrity of the legislative process (esp. criminal justice reform) when lawmakers have charges against them. Committee wrote to Election Commission asking details of charges against candidates/MLAs/MPs, party policies, EC guidelines. EC does not have details of charges/conviction. Requested to ask candidates for 3-monthly reports on case progress, create database. EC does not have the power to reject nominations filed with false affidavitseven though this is legally punishable. EC recommended in 1998, 2004 that candidates charged with serious offences be disqualified (even before conviction). Recommendation: Amendment to Rep. of People Act, 1951. EC has no information on internal party policies, but has recommended a law covering the same. Extensive data provided by Association for Democratic Reform: in the last 10 years, 31% of the Electoral College has had criminal charges against them, 20% elected candidates have criminal records including heinous crimes (rioting, bribery, murder, rape etc.)
- 13. Ch. 14: Education& Perception Reform Society inculcates some false moralities; gender is a social construct but nature/biology blamed for male aggression. Detrimental to all genders not to promote alternate forms of masculine expression. School is a dynamic experience; Right to Ed. should mean an education of quality, substance with some degree of transformative potential. Address sexism in teacher training, pedagogy (e.g. ask boys to clean), administration, school leadership, data management (e.g. “father’s details”). Sensitive curriculum + textbooks (e.g. no different lessons for girls/boys). Teach critical thinking, skill to make informed decisions, change perceptions, norms – use discussions, innovative methods. Provide clear, well-informed, scientifically grounded sexuality/relationship ed. based on respect for human rights – well-trained, competent teachers and counsellors. Address LGBT experiences. UNESCO 2 vol. report on “International Technical Guidance on Sexuality Education”. Adult education – gender roles tend to be more internalised – but community campaigns can be made more effective by accompanying govt. campaigns, celebrity involvement.
- 14. Implementation & Thoughts CriminalLaw (Amendment) Ordinance, 2013: some changes to punishments, broader definition of sexual assault (but exception for marital rape), changes to Evidence Act. Most systemic changes yet to be debated/implemented. Could we form a team and work with partners in India to monitor implementation of the recommendations? (Use RTI, make the information accessible). Several concrete recommendations. Can we look for projects that seek to implement some of them? Some are gender/sexuality related, some are not. e.g. rural sanitation, community policing, work with survivors of domestic violence, juvenile institutions, sex ed, socialisation of children, mainstreaming LGBT experiences. AID-wide Gender and Sexuality Cell? Justice Verma passed away on 22 April, 2013, aged 80.
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- 17. Ch. 1: Constitutionalism,Republicanism, and Gender Equality Constitutionalism. Republicanism. Applauds protests for justice after incident and comments that if political class discards such silent protest by the arrogance of power or assumption of authority then they might destroy their own existence. Gender Equality: Lack of women empowerment . Patrilineal system. Miscellaneous: Different sexual orientation. Prevention of domestic violence. Malnutrition of women and children.
- 18. Ch. 2: GenderJustice and India’s Obligations under Intl. Conventions UDHR (Universal Declaration of Human Rights). ICCPR (International Covenant on Civil & Political Rights). ICESCR (International Covenant on Economic, Social & Cultural Rights). CEDAW (Convention on Elimination of all forms of Discrimination Against Women). DEVW (Declaration on Elimination of Violence against Women). UN Study: Non-implementation or ineffective implementation of existing domestic laws in most countries was the single most important reason for continued immunity to perpetrators of violence against women. Committee thinks: Failure to frame a domestic law, which is requisite for dealing with violence against women, will constitute a breach of international conventions.
- 19. Ch. 3: Rapeand Sexual Assault Rape: Against her will. Without her consent. With her consent, when… Consent: Consent of child. Consent of insane. Consent out of fear or misconception. Definitions of rape and sexual assault have evolved over time, from requiring use of force or violence, to requiring lack of positive consent. Proof by the accused of steps taken to ascertain whether the complainant was consenting. Penetration is sufficient to constitute to offence of rape.
- 20. Rape and SexualAssault (cont.) Attempt to commit rape: Intention to commit. Preparation to commit it. Attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails, the crime is not complete, but law punishes the person attempting the act. Sexual Assault: Non-penetrative forms of sexual contact should be regarded as sexual assault. The offence of sexual assault should be defined so as to include all forms of non-consensual non-penetrative touching of a sexual nature. The sexual nature of an act should be determined on the basis of the circumstances. Sexual gratification as a motive for the act should not be prerequisite for proving the offence.
- 21. Rape and SexualAssault (cont.) Evidence & proof: Her testimony alone is sufficient for conviction. In prosecutions of rape, the law does not require corroboration. It is only by way of abundant caution that the court may look for some corroboration so as to satisfy its conscience and rule out any false accusation. Conviction rates for rape are still lower than any other major crime. The exception for marital rape be removed.
- 22. Ch. 4: SexualHarassment at the Workplace Def.: Physical contact and advances; or A demand or request for sexual favors; or Making sexually colored remarks; or Showing pornography; or Any other unwelcome physical/verbal/non-verbal conduct of sexual nature. Employment Tribunal: Retired judges (of whom one must be a woman), two eminent sociologists and one social activist, who has sufficient experience in the field of genderbased discrimination. No complex procedure - follow a summary procedure. Should not be evidence-intensive and hence should not require either a plethora of documents or witnesses.
- 23. Sexual Harassment atthe Workplace (cont.) Establishments to which the proposed Act shall apply: All government institutions, all public bodies, all panchayats, all establishments covered under the Factories Act and the Industrial Disputes Act and all employers in the private sector who are not otherwise covered by the categories listed above. Mode of Enforcement: Policy should form part and parcel of the letter of appointment to ensure every person joining the establishment is made aware of their rights against sexual harassment. Prominently displayed within the premises with complete details on the procedure for making a complaint. In case of dereliction of duty of the employer - imprisonment of the concerned officer for a repeat offence. Requirement of complaint to be made only in writing: State a complaint orally, which may then be transcribed into the written form in the manner prescribed by the Tribunal.
- 24. Sexual Harassment atthe Workplace (cont.) Limitation: No Conciliation: No fixed time period; complaint shall be made within a reasonable period of time with regard to the facts and circumstances surrounding the making of such a complaint and the personal circumstances of the complainant. The complainant shall not be permitted to withdraw a complaint once made. Role of Employer: Nodal Officer. Education programs within their premises. Internal committee.
- 25. Sexual Harassment atthe Workplace (cont.) Action during pendency of the enquiry/case: With the consent of the aggrieved; either transfer the aggrieved woman or the respondent or to grant leave to the aggrieved woman. Both the aggrieved woman and the respondent should not be compelled to work together on any project. Review of Premises by the Tribunal. Special Provisions as to Universities: Those universities, in which Internal Complaint Committees have functioned successfully to deal with sexual harassment, should share their internal guidelines on combating sexual harassment in their University with other Universities.
- 26. Ch. 5: OtherOffences against Women Acid Attacks: Acid attacks, and attempted acid attacks, be defined as a distinct criminal offence in the IPC. No prosecution for murder in process of preventing an acid attack. Young women for spurning suitors, for rejecting proposals of marriage, for denying dowry. Imprisonment of 5 to 7 years. “Eve-teasing”: “Using words, acts or gestures towards or in the presence of another person which create an unwelcome threat of a sexual nature or result in an unwelcome advance.” Add it under section 354 (sexual assault). Jail for 2-5 years.
- 27. Other Offences againstWomen (cont.) Rape by State: Sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law. Ensure the safety of women who are complainants and witnesses in cases of sexual assault. Special commissioners. Training and monitoring of armed personnel must be reoriented to include and emphasise strict observance by the armed personnel of all orders issued in this behalf. Imminent need to review the continuance of AFSPA and AFSPA-like legal protocols. Jurisdictional issues must be resolved immediately and simple procedural protocols put in place to avoid situations where police refuse to or refrain from registering cases against paramilitary personnel.
- 28. Ch. 6: Traffickingof Women & Children The Committee noted that the Immoral Trafficking Prevention Act, 1956 did not define trafficking comprehensively since it only criminalised trafficking for the purpose of prostitution. Recommends that the provisions of the IPC on slavery be amended to criminalise trafficking by threat, force or inducement. Recommends criminalizing employment of a trafficked person. Protective homes for juveniles/women should be placed under the legal guardianship of High Courts and steps should be taken to reintegrate the victims into society.
- 29. Ch. 7: ChildSexual Abuse Minimalistic approach of the State to establish and fund child protection homes, Integrated Child Protection Schemes. Provisions of the Juvenile Justice Act are lacking, but also, these provisions are not implemented in their letter and spirit. SJPU’s and Child Welfare Officers do not exist in every police station and even where they do they have been largely untrained. Child Welfare Committees and Juvenile Justice Boards are yet to get infrastructure. School curriculum must involve “Social Science- Practical Applications” - respect and equality towards women, school counselor. Direct and rational nexus between methods of parenting and school curriculum and the rights of women, especially the girl child. Civil Society, politicians, social media to pitch in for parenting.
- 30. Child Sexual Abuse(cont.) Destitute. External social audits to audit the performance of all institutions of governance and law and order for the sake of transparency. Working of the system of juvenile justice homes, child welfare committees, child protection centers, is wholly unsatisfactory. Professionalisation in the appointment of wardens, superintendents, caretakers of all custodial homes including homes for disabled and poor all over the country. The Committee has recommended that the terms ‘harm’ and ‘health’ be defined under the Juvenile Justice Act, 2000 to include mental and physical harm and health, respectively, of the juvenile.
- 31. Ch. 8: KhapPanchayats and Honour Killings Khap Panchayats are community bodies, especially common in states such as Punjab and Haryana, that issue diktats on marriage and caste issues. We expect the State to ensure that these institutions will not interfere with the choices made by men and women in respect of marriage. One of the most prevalent practices employed by Khap Panchayats to enforce their decisions is that of ‘Honour Killing’, but such killings are prosecuted under provisions relating to murder already.