On January 5, 2013, we, CRI, had communicated via email our suggestions/comments (“First Representation”) to amendments to criminal law relating to safety and security of women in response to the Public Notice. In addition to the suggestions made in our First Representation, we have received inputs from our readers, some of which we humbly wish to bring to the Committee’s notice for its consideration. We are aware that the instant supplementary representation is belated and is past the deadline. However, considering that the issue being addressed by the Committee is of grave public importance, we hope that the Committee will not let technicality come in the way of appreciation of the contents of this representation.
In our First Representation, we had humbly suggested broadening the definition of rape by treating absence of consent as the cardinal parameter by which to classify sexual offences as rape. In addition to the same, it is also our belief that the issue of sexual harassment must be addressed at a much broader level, instead of viewing it solely through the prism of rape. The spirit behind this suggestion is to discourage unwelcome sexual behaviour at the most fundamental level, which in quite a few cases ultimately ends in rape. To this end, it would help to create a calibrated framework covering sexual offences, with the levels of punishment for each offence designed to sufficiently deter the offender from contemplating escalation of his behaviour to the next level.
For instance, if an unsolicited “dirty” call or text message were to be treated as the first rung of the ladder, “naming and shaming” could be prescribed as the punishment whereby the offender’s identity and contact details are made known to the public, besides imprisonment for a period of 6 months or fine of INR 1 lakh to be paid to the victim, or both. For the offence of rape, besides considering the death penalty or a harsher and longer term of imprisonment, it would also help if the offender is made to pay an appropriate compensation which can cover the living expenses of the victim for the remainder of her life, including the living and medical expenses of her dependants. To this end, the law must provide for attachment of the offender’s assets, including benami properties, to ensure enforceability of the punishment.
As regards our proposal 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 aggravated forms of rape deserving of harsher punishments including the death penalty, we humbly seek to include rape of minors and senior citizens in the same aggravated category. With specific regard to Section 376(2)(g) which deals with gang-rape, we humbly suggest deletion of the Proviso to the provision which allows a Court to sentence the offender for a period less than 10 years for “special and adequate” reasons.
Issues which deservedly call for nuanced treatment are rape of minor by juvenile(s), and rape of adults by juvenile(s). Despite the “adult” nature of the offence in both circumstances, it is to be noted that the law, as it stands today, requires the offender to be treated as a “juvenile in conflict with the law”. The options which could be considered are either lowering the age limit of a juvenile, or creating exceptions with regard to certain offences wherein the Juvenile Justice Board is empowered to come to the conclusion beyond all reasonable doubt that the offender does not deserve to be treated as a juvenile if he is between 17 and 18 years old, having mandatory regard to the circumstances of the crime and the background of the offender. Of these two options, the latter appears to be better grounded in the absence of empirical evidence which supports reducing age limits.
With respect to the suggestion to constitute fast-track benches, a time-bound trial could go a long way in preserving the deterrence value of punishments prescribed by the Legislature. When the Supreme Court observes that suits for intellectual property infringement must be ideally decreed within 4 months from the institution of the suit, it is ironical that a similar sense of urgency is not displayed by Courts when dealing with cases relating to sexual offences. We do not for a moment suggest that an unrealistic timeframe be prescribed, for justice could be the casualty of such a measure. However, a timeframe of 1.5 years for conclusion of the trial and sentencing from the date of filing of the Complaint appeals to our sense of fairness and justice.
Finally, as regards policing and relief measures, besides the constitution of a Sexual Offences Unit which was proposed in our First Representation, the incident involving “Nirbhaya” also points to the need to do away with jurisdictional issues for sexual offences. Further, it would help if a roster of reputed physicians and trauma care experts are permanently attached to the proposed Sexual Offences Unit, with dedicated ambulance and emergency aid facilities.
With these few additional suggestions, we humbly thank the Committee for the opportunity provided to participate in this exercise of collective cogitation and sincerely hope that these well-meaning suggestions will be duly considered. We are confident that this Committee will do justice to its historic mandate and set in motion a chain of events which will ultimately ensure that no woman or child is ever subjected to the bestiality that a 23-year old Indian woman had to endure on the roads of the capital of the world’s largest democracy.