The Criminal Law Amendments suggested by the Justice Verma Committee are synopsised in a two part piece by Mrinal Satish and Shwetasree Majumder, who worked with the Committee. The authors have prepared this synopsis in their individual capacities. They do not purport to represent the views, or speak for, the Justice Verma Committee.
The Justice Verma Committee was set up by the Government of India after the gruesome gang rape incident that occurred in Delhi on December 16, 2012. The Committee was asked to review existing laws and suggest amendments to criminal law to effectively deal with instances of sexual violence.
The Committee, however, did not view its mandate as only drafting new laws. It placed its mandate within the framework of the Constitution. The Committee grounded its report in the State’s obligation to secure the fundamental rights of its citizens, which includes the right of every person to assert one’s individual autonomy.
In the context of women, if they are denied autonomy, even by actors other than State, the duty of the State does not diminish only on that ground. The failure to secure rights of women results in the State denying the right to equality and dignity that women are guaranteed under the Constitution. [See pages 65-67 of the Report].
The Committee’s report, including the new offences that have been d, and modifications suggested of the existing ones need to be viewed within this Constitutional framework. The Justice Verma committee has made wide ranging recommendations for changes to various laws that impact upon women’s right to equality and right to dignity. In this two-part synopsis, we focus on amendments made to the criminal law framework relating to sexual violence.
In Part I of the synopsis, we discuss the set of new offences recommended by the Committee, including stalking and voyeurism. We also discuss the modifications suggested to Section 354 of the Indian Penal Code (IPC), which defines the offence of “outraging the modesty of a woman. The offence has been re-christened as “sexual assault” and the terminology has been changed from archaic concepts of “modesty” to recognition of sexual autonomy, dignity and freedom.
We also discuss amendments suggested to the Code of Criminal Procedure, 1973 (Cr.P.C.) and the Indian Evidence Act, 1872 (IEA). In Part II of the synopsis, we discuss amendments suggested to rape laws, the recommendation to introduce a new offence of trafficking, as also issues relating to medical examination of rape survivors. These synopses provide a summary and brief explanation of the changes recommended, and the reasons for these changes. They do not contain an analysis or a critique of the provisions.
Amendments to the IPC and the introduction of new offences
A. Acid attacks- The Committee highlights the heinous and yet commonplace nature of acid attacks in several Asian and African countries including India (page 146). Although the Committee notes that traditionally the offence is dealt with under Section 326 of the IPC, it observes that ”what happens when there is permanent physical and psychological damage to a victim, is a critical question and law makers have to be aware that offences are not simply based on the principle of what might be called offence against the body, i.e., damage of the body, but they must take into account the consequences on the right to live with dignity which survives the crime” (page 147).
The Committee notes that the Criminal Law (Amendment) Bill, 2012 includes the offence of voluntarily causing grievous hurt, through use of acid. Under the proposed Section 326A of the Amendment Bill, if a person causes permanent or partial damage to the body of another person by throwing acid on, or administering acid to that person, with the intention of causing injury, or with the knowledge that injury shall be caused, that person shall be guilt of the offence defined in Section 326A. The Amendment Bill has proposed a minimum punishment of ten years, and a maximum of life. It has also proposed that a fine of a maximum of rupees ten lakhs may be imposed, which shall be given to the victim.
The Committee makes some key modification to this provision. It recommends that the offence not be confined to only throwing acid on a person. It suggests that if a person causes permanent or partial damage to the body of another person, by using means other than throwing acid, such person and acts, should also be brought within the purview of the section. The Committee also recommends that the victim should receive Central and State government assistance through a compensation fund (See Para 8 page 148). It further recommends that instead of a fine, the convicted person be liable to pay compensation to the victim, which should be sufficient to at least cover the medical expenses of the victim.
The first explanation to the section takes the offence beyond the specific sphere of acid attacks to other violent hate crimes against the body of a woman, which maim or permanently damage or disfigure her, such as forced circumcision of a woman or female genital mutilation. The second explanation pre-empts an argument against liability if the victim ‘reverses’ the visible effects of the attack, through medical treatment.
This formulation captures the Committee’s recognition that the offence is not only about physical damage, but also about right of a person to live with dignity. The Criminal Law (Amendment) Bill, 2012 proposes the addition of Section 326B which punishes the voluntary throwing or attempt to throw acid on a person. The offence is punishable with imprisonment for a minimum period of five years, which may extend to seven. Along the lines of its recommendations for modifying Section 326A, the Committee recommends the broadening of Section 326B to include any other means to achieve the purpose of permanently or partially damaging a person’s body.
B. Sexual Assault Under the current Section 354 of the Indian Penal Code, a person who “assaults or uses criminal force to any woman, intending to outrage or knowing it to be ly that he will thereby outrage her modesty” is punished with imprisonment of upto two years, or fine, or both. The focus of the provision, rather unfortunately is on “outraging of the modesty” of a woman and invariably the defence against the application of such a provision has centred around what constitutes a woman’s modesty, whether the woman in question was of such a acter to claim that her modesty was outraged, whether young girls below the age of puberty have ‘modesty’ etc. Further, under the current formulation the offender can argue that he did not intend to “outrage the modesty” of the woman, or that he did not know that his actions would result in the “modesty of the woman” being outraged.
Hence, the need for change was palpable, so as to change the focus of the crime from notions of “modesty” to violation of sexual autonomy. The reing of the provision therefore needed to be wider in scope, cover a range of offences (and consequently provide higher degrees of punishment) and be a gender neutral provision that criminalised unwelcome sexual acts of varying degrees of severity.
The Committee has re the provision in its entirety to criminalise all acts of non-penetrative sexual violence under the umbrella term of ‘sexual assault.’ This ranges from the intentional contact of a sexual nature with another person without their consent, to using words, acts or gestures towards or in the presence of another person to an unwelcome threat of a sexual nature or which result in an unwelcome advance.
In its recommended avatar the provision shifts focus from the “modesty” of the woman being the lens to view the offence to an assessment of when sexual assault can be said to have occurred. The Committee also recommends the repeal of Section 509 of the IPC, since the acts criminalized under that section are covered in the re Section 354. Drawing from the Canadian approach, the Committee explains in the context of the re Section 354 that while the offence of sexual assault should include all forms of non-consensual non-penetrative touching of a sexual nature, the ‘sexual nature’ of an act would be established if- “viewed in the light of all the circumstances…the sexual or carnal context of the assault [is] visible to a reasonable observer.”
The Committee observes that the courts will examine factors such as the part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, threats, intent of the accused and any other relevant circumstances but warns that it should not be a prerequisite that the assault be for sexual gratification.
The motive of the accused is ‘simply one of many factors to be considered.”(page 112). The Committee also recommends change in the sentencing framework. For an act that involves physical contact, a maximum penalty of imprisonment for five years has been recommended. For acts that do not involve physical contact, a maximum sentence of one year has been suggested.
C. Public Disrobing of a woman- The Committee takes note of various instances across the country of humiliating a woman by publicly disrobing her. Recognizing this as a crime usually done with the intention of publicly humiliating a woman, the Committee proposes a separate provision to deal with this act. It recommends enactment of Section 354A to deal with this offence. A minimum sentence of three years, and a maximum sentence of seven years is recommended for this new offence.
D. Voyeurism- The Committee recommends the introduction of a new offence of voyeurism. Although the Information Technology Act covers invasion of privacy using electronic devices, the IPC does not contain a provision that defines and punishes voyeuristic acts. This new section achieves that purpose.
The provision covers two types of instances
(1) the perpetrator watches the woman secretly, and
(2) the woman might have consented to the perpetrator watching her (for instance, when the woman might be in a relationship with the perpetrator) but not of any third party watching her at the perpetrator’s behest. Watching a woman in these circumstances amounts to voyeurism if she was engaged in a private act, which, in the first explanation to the provision is defined as “an act carried out in a place which, in the circumstances, would reasonably be expected to provide privacy, and the victims 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.” The second explanation covers instances a woman may have consented to her private images being captured by the perpetrator (such as, once again in instances of a relationship between them) but not to such pictures being disseminated by him to third parties. The recommended punishment for the offence of voyeurism is of imprisonment of one to three years and fine, and in the event of a second or subsequent conviction with imprisonment for a minimum of three years which may extend to seven years and also fine.
E. Stalking- The Committee recommends the introduction of a new offence of stalking. “[T]he Committee was surprised to find out that offences such as stalking, voyeurism, ‘eve-teasing’ etc. are perceived as ‘minor’ offences, even though they are capable of depriving not only a girl child but frail children of their right to education and their freedom of expression and movement.” Therefore, the Committee takes the view that “it is not sufficient for the State to legislate and establish machinery of prosecution, but conscious and well thought out attempts will have to be made to ensure the culture of mutual respect is fostered in India’s children. Preventive measures for the initial minor aberrations are necessary to check their escalation into major sexual aberrations.” (Page 215)
The offence of stalking (which is gender neutral) is committed in any one of three situations listed below-
Where a person (i) follows another and (ii) contacts, or attempts to contact them (iii) in order to foster personal interaction (iv) repeatedly (v) despite a clear indication of disinterest, or
Where a person (i) monitors the use by another person of the internet, email or any other form of electronic communication, or Situation 3- Where a person (i) watches or spies on another person, (ii) in a manner that results in a fear of violence or serious alarm or distress in the mind of the other person, or (iii) in a manner that interferes with the mental peace of the other person.
The provision includes three exceptions, the action will not amount to stalking-
(a) the course of conduct is pursued for the purpose of preventing or detecting crime and the person accused of stalking has been entrusted with the responsibility of prevention and detection of crime by the State or,
(b) the course of conduct is pursued under any enactment or rule of law, or to comply with any condition or requirement imposed by any person under any enactment or,
(c) , in the particular circumstances the pursuit of the course of conduct was reasonable. The punishment recommended for the offence of stalking is imprisonment of either description for a term which shall not be less than one year but which may extend to three years along with a fine.
Source - http://barandbench.com/brief/3/3155/synopsis-of-the-justice-verma-committee-report-part-i
Committee-report-part-i Full Report - -http://www.scribd.com/doc/121781170/Justice-Verma-Report