(Updated- CRI intends to submit a supplementary representation to the Verma Committee by end of day today. We request our readers to submit their suggestions/comments by tonight on the first representation in the comments section to the first representation (link provided here). Please note that some of these suggestions may form part of CRI’s supplementary representation to the Verma Committee. Those readers who share their suggestions shall be deemed to give CRI their express consent to use the suggestions, without being individually identified/attributed in supplementary representation.)

A three-member Committee comprising Justice (Retd) JS Verma, former Chief Justice of India as the Chairman while Justice (Retd) Leila Seth, former Chief Justice of Himachal Pradesh and Gopal Subramaniam, former Solicitor General of India and former Chairman of Bar Council of India has been set up by the Union Government . The Committee invited eminent jurists, legal professionals, NGOs, Women’s Groups and civil Society members to give views, knowledge and experience suggesting possible amendments in the criminal laws and other relevant laws to provide for quicker investigation, prosecution and trial as also.

Please find below CRI’s Representation to Justice J.S.Verma Committee. CRI wishes to thank our friend Shri Barbarindian for his thoughtful inputs.

Dear Sirs and Madam,

The instant representation, on behalf of Centre Right India (CRI), is in response to the Public Notice (“Notice”) inviting suggestions on amendments to criminal laws relating to safety and security of women. CRI is an initiative dedicated to promoting meaningful political discourse in India and functions primarily as an alternative news and opinions outlet.

Before we proceed to place on record our humble suggestions/proposals in relation to the subject-matter of the Notice, we thank you for giving members of the public an opportunity to constructively channelize their outrage at the abominable and tragic incident which occurred in the nation’s capital in civil hours on December 16, 2012. That said, it is truly unfortunate that it has taken such a gory and dastardly incident to make the Goverment sit up and take notice of what has been evidently amiss and flawed in the system for quite some time now. Clearly, vigilance, which is a cardinal virtue of a democratic society, is a concept that appears to have no takers in the present Government, which appears to have become a past master at passing the buck and shaming the nation into guilt instead of looking inwards for answers.

The incident has exposed several chinks in the existing legal and policing framework. The first and foremost issue which, in our humble opinion, needs to be addressed is the narrow and restrictive definition of what constitutes statutory rape. It is our humble view that law represents the lowest acceptable threshold of legal morality. It follows that a narrow definition of rape only serves to encourage and facilitate apathy towards conduct which would otherwise amount to sexual harassment in any civilized society which values the dignity of an individual.

At the heart of the offence of rape, is the wilful disregard of the absence of consent from the victim to sexual advances of any kind. If this is the premise, it would be logical to postulate that consent must be used as the parameter to define rape regardless of the gender of the victim or the offender, the relationship between the offender and the victim (including that of marriage) and the promiscuous nature of the victim’s means of livelihood. In other words, it must be legally recognized that consent to sexual intercourse is neither the sole propriety of a particular gender nor is it the privilege of the “virtuous”, but is in fact the fundamental right of every person, regardless of the “character” or “gender” of the victim.

Besides treating consent as the metric to shape the jurisprudence of sexual harassment law, it would also help to treat gang-rapes, custodial rapes, rapes by public servants, rape by medical professionals, rape of the mentally or physically challenged, rape of dalit women and rapes during riots as being different and much more severe than a “normal” rape. This could translate to different punishment slabs for each category, with parole being ruled out for convicts of such offences.

It appears that there is a clamour for “reversal of burden of proof” in cases of sexual offences. This is a misplaced and catastrophic suggestion since such a provision, besides militating against the cornerstones of criminal law, could be mischievously employed to settle scores. Such a consequence could lead to situations where genuine complaints are dismissed and brushed aside as cases of malicious prosecution, thereby trivializing the issue.

Further, in the well-intentioned outrage following the tragic incident involving “Nirbhaya”/”Amanat”/”Damini”, there have been calls from certain quarters to lower the age for adulthood. Such a move is bound to have disastrous adverse consequences for persons who must be legitimately treated as “juvenile offenders”.

In our humble opinion, the solution does not lie in arbitrarily lowering age limits or increasing punishment thresholds in the absence of empirical evidence to support either; instead, it lies in ensuring that justice is swift and sure. Deterrence lies in the certainty of punishment within a reasonable timeframe, and not in treating an increase in punishment thresholds as the silver bullet to a multi-faceted issue. To this end, it would help to constitute fast-track benches in Courts which handle sexual offences. Further, a conviction in a trial court must be accorded greater sanctity in the case of sexual offences. Accordingly, the number of appeals from the decision of the trial court may be reduced. Since the suggestion is to add more meaning and value to the findings of a trial court, it calls for raising the bar in evidence collection and preservation techniques. The constitution of a Sexual Offences Unit, similar to the Economic Offenses Wing/Units, could go a long way in evolving best practices in the investigation of sexual offences.

Finally, the death penalty could be considered a deterrent tool, at least in cases of gang-rapes, custodial rapes, rapes by public servants, rape by medical professionals, rape of the mentally or physically challenged, rape of dalit women and rapes during riots with there being no recourse to a clemency petition. This would be consistent with the spirit of Section 354(3) of the Cr.P.C whereby the very commission of these offences could be treated as “special reasons” warranting the awarding of a death sentence.

It is fervently hoped that the suggestions contained herein would be duly considered by the Committee, and that concrete action would follow in the foreseeable future. Once again, we take this opportunity to profusely thank the Committee for inviting suggestions from members of the public.

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J. Sai Deepak

Engineer-turned-Advocate, High Court of Delhi. Founder of the "blawg" "The Demanding Mistress" (http://thedemandingmistress.blogspot.in/).