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Wednesday, January 9, 2013

Comments to Justice Verma Commission for amendment to Criminal Laws relating to safety and security of women

Comments to Justice Verma Commission for amendment to Criminal Laws relating to safety and security of women




                                                                                                                   Dt. 05/01/2013



Chairman, Hon’ble Justice J S Verma,
Justice Verma Committee,
New Delhi – 110001



Sub: Heinous crime of rape of 16th December 2012 and the Government proposed legislation to address the problems being faced by women- Sexual Assault, Rape, Domestic Violence, 498a, 406 etc etc.- Response to the Public Notice

Respected Sir,

A rape reported through media  in a moving bus in Delhi on the night of 16th December 2012 has shaken the entire country and in fact the way the crime has been conducted is never heard in the life time and the culprits whosoever needs to be punished under rarest of the rare crime category.

The entire episode of the crime has compelled Government of India to reconsider the penal provisions vis-a-vis crime against women. Accordingly the Commission has been entrusted to recommend the legislators for an appropriate Act covering whole gamut of crime against women.

In view of the proposed legislation covering crime against women, there is a need to keep in view the earlier Acts which have been enacted and covers the crime against women. Some of the Acts are Domestic Violence, 498a, 406, HMA, Sexual Assault etc. etc. No doubts these Acts were enacted to safe guard the women but the way these Acts have been exploited and misused to settle the scores with the men cannot be over sighted. Various stakeholders have used the terms like “Legal extortion”. Perusal of number of judgements by the superior courts are examples of prevailing corruption in the implementing agencies. A well employed woman (even in the range of Rs. 1.00 lakh per month) drags the case in the court on the pretext of maintenance. Why such cases are not out rightly rejected even to be entertained at the time of filing application and the husband ordeal starts. All police machinery sets into motion for grabbing the property of parents-in-law where even prima facie evidences are existing that the parents-in-law property is not a matrimonial house. Even the Supreme Court orders are set aside in the expectation of bribe. The police need to be more accountable to such harassment to the families and officials identified and penal action initiated. A woman simply files a complaint and then whole of the machinery sets into motion. Close to 98% cases have been found being misused by women and their relatives. This has resulted into manifold increase in divorces besides putting entire affected family to ransom. A complaint of Ms. Nisha Sharma alleging dowry demand at the time of marriage ceremony ruined the family and the groom for about many years and ultimately turned out to be a case of false complaint. A girl alleged of her rape in the parking of Mahagun Mall turned out to be a case of extortion of money from her boy friend and Media made a hue and cry of the incidence in favour of the girl who filed a false complaint. A recent complaint of 42 years woman (resident of Jaipur) registered a complaint in the Kalkaji Police Station alleging rape on the way from Vrindavan to Delhi turned out to be false which was filed for some property disputes. There are number of reports appearing in the media are the testimony to the theory of filing false cases against men. A woman was found to have married with many men in a period of just one year proves that how effective are the provisions of Acts to extort the money either through police cases or cheating the men. In fact, the reporting of number of false complaints in proportion to the genuine cases are making a story of “Wolf and Shepherd” delivering injustice to the genuine victimised women. The false cases are also victimising on an average two to three times more women as the women members (sister-in-law, mother-in-law) of the husband families are also falsely implicated and have to face wrath of the police atrocities. The laws made for the welfare and safety of the women are the laws to officially and legally victimise the women and the main backbone is the prevailing corruption and opaqueness in the legal system. The legal agencies threatening the husband for parting away the hard earned money stating “so many verdicts have been announced for hanging till death”.  A woman whether living with husband’s family or not will name the husband and his entire family. There have been instances when the family members have committed suicides as soon as FIRs are registered. Police starts violating even the codes which are even advised by the Hon’ble Superior Courts in their various judgements as the affected family is an ordinary person not from the background of legal and having no knowledge of laws. Police starts victimising the families and then further harassing through a mediation process. Mediators start negotiating with the family with the quantum of money that they can afford or willing to pay to the family. The least is commented about the corruption prevailing in the Police Department and the Mediation Centres, the better it is. Even there is a trend where the SHO speaks on behalf of the so called woman victim and money is negotiated. The families which don’t want to pay any amount are harassed through the practice of dragging of the cases in the court which are also biased.  With the change of time, education, modern society and western culture invading into the country, it has now become myth to believe that the woman speaks truth. The principle of natural justice speaks providing punishment to guilty and relief to innocent. It needs to ensure that no provisions are abused. Decency in the culture needs to be observed as part of the responsibility else indecent wearing by the men may also not be objected as an offence under displaying of sexual organs. However, such needs to be reserved under citizen education as it is of social problem. Asserting rights needs to be preceded by discharge of responsibilities. Some of the statistics at Table 1 and 2 indicates that it is the category of males which are mostly suffering as compared to females and needs to be referred during the enactment process.

                            Table1: Number of Suicides    (Source: NCRB)     



Year
Total Suicide
Married Men
Married Women
2005
113914
52583
28188
2006
118112
55452
29869
2007
122637
57593
30064
2008
125017
57639
30224
2009
127151
58192
31300
2010
134599
61453
31754
2011
135585
62433
32582

















                                                                                            

    

                                 Table 2: Number of Suicides (Source: NCRB)


2010
2011

Males
Females
Males
Females
Total
87180
47419
87839
47746
Family Problems
19828
12028
20345
12564
Dowry Dispute
80
3013
139
3100
Fall in Social Reputation
843
479
691
469
Love Affairs
2216
1950
2483
2103
Physical Abuse (rape Incest etc.)
77
224
85
201





The Acts are being used as a tool for empowerment of police to extract the money. The enactment of the legislations needs to be based on the following principles:



1.      Transparency

2.      Addressing the scope of corruption

3.      Addressing the scope of abuse of any of the provision of the Act.

4.      Equal Punishment to the guilty irrespective of their Gender that means the enactment of legislation to be Gender Neutral. A person filing a false complaint also to be termed as guilty for the purpose of award of similar quantum of punishment and penalties.

5.      Use of simple language to be understood by an average educated person

6.      Redefining in an objective manner the definition of sexual assault, rape, domestic violence. There may not be any scope of subjectivity.

7.      Principle of Natural Justice

8.      Equality among Genders

9.      Faster Delivery System of Justice

10.  Accountability of Media on gender biased media trial

11.  Complaint redressal system to handle complaints of harassment, corruption etc. by the implementing agencies.

I would submit before your lordship to address the foregoing issues in your proposed legislation:

1.      As mentioned above, all existing Acts concerning crime against women may be repealed to be replaced with a single Act with all the provisions concerning safety and welfare of women.

2.      The proposed enactment of the Act may please be ensured to be implemented in a transparent manner and all the information be made available on the web-site. The web-site may contain statistics of No. of cases reported, FIR registered, FIR dropped, name and other details of the complainant and her family if the complaint is found to be false so that the other persons don’t fall prey to such women. The transparency in the information is likely to deter the women filing complaint with ulterior motives to settle their personal scores. All the Police Stations/ women police stations should update the information on real time basis and the appropriate information should be available for public viewing especially with respect to the persons abusing the process irrespective of the sex.

3.      To avoid misuse of the Act, the laws may be incorporated to award the same level of penalty and punishment to the women in case the complaint has been found false lodged with ulterior motives. The meaning of the equal punishment should be one to one which implies that if there is a punishment of say 7 years imprisonment for the rape, then 7 years imprisonment may be awarded to the woman in case her complaint is found false. If the women has implicated 4 members of the family in a domestic violence complaint and the complaint is found to be false then all the 4 members of her family to be granted the same level of punishment which would have been awarded had the offence been truly committed.   This would ensure that the provisions are not abused for settling their personal scores and only the genuine cases are reported so that the state machinery is set into motion for its effective role. The victimised family due to false complaint should be financially compensated to be paid by the false complainant as the filing of false complaint causes financial loss besides loss of their reputation due to harassment from the law enforcing agencies.  A news report that has appeared and may please be perused on http://dailypostindia.com/news/41829-seven-false-rape-cases-registered-in-punjab-in-two-days.html which states that out of  11 cases registered during two days (at a time when the consultation process still going on and the legislation is yet to be enacted) 7 cases have been found false and Punjab Police is now taking action to drop the FIR registered in these 7 cases. Two more cases on which investigation are still going on are in the category of highly doubtful. These 7 cases where the Police have already found to be false must have caused mental trauma to the accused and their family besides financial spending, loss of reputation. This is at a stage where still no laws have been enacted for death penalty. It is clearly indicative if the death penalty is provided as a punishment in the legislation without addressing the issue of “gender neutral” the provisions would be abused with false allegations and it may not be in the interest of the society to be left with only females. FIR may be registered only when there is a prima facie case not just in a routine manner on filing the complaint. There is a need of more accountability of the implementing agencies with penal provisions. Implementing agencies may also include any other agency but not limiting to Police, Mediators, Legal, FSL etc.

4.      There have been reports even in some of the cases that Medical reports have been fabricated by the police in convenience with law enforcing agencies. The proposed legislation may also address the issue of such malpractices prevailing in associated agencies with penal action.

5.      All the proceedings in cases under crime against women may be heard with a provision of CCTV cameras not only for video recording but also voice recording.

6.      The proposed laws should have provision of time frame of filing charge sheet, grant of divorce and other associated issues. It is seen that the charge sheets are not filed even for years hanging a sword on the neck of the falsely implicated accused. The element of corruption is prevailing in these agencies and the proposed legislation should take care of such possibilities. The noting of family courts may be made available on a real time basis on the internet as being done in High Court proceedings.

7.      The laws under proposed enactment should encourage citizen education keeping in view that the misuse would result only in society disintegration. The laws should be spelled out in a very simple language looking at the profile of Indian population wherein more than 70% belongs to rural areas and 100% population is the stakeholder of the proposed enactment.

8.      The proposed laws should be gender neutral as the harmony is the basic need of the time. It cannot carry on with one sex either female or male. The charges like “that the wife has been raped by the husband” need to be excluded from the definition of sexual assault as these have been used only for the purpose of blackmailing and extortion.

9.      The proposed laws should also address the issue of misuse by Police Department/ Mediation Centres specially Investigating Officer. IOs have been heard saying “aaj karo ya dus saal baad karo ley dey key hee kutch hoga, case toh samjhotey sey hee khatam hoga chahye aap bees saal tak wait karo” “kanoon mera kya ukhaad lega” etc. etc.

10.  All the cases falling under crime against women shall be referred to fast track court and the proceedings conducted therein under camera with an objective of transparency and judicial accountability. The cases of crime against women should be disposed off within one year from the date of FIR else the cases may be treated as dropped. Let the parties to the disputes settle their new life as the State has got no right to spoil the once shorten life by dragging the case for years in some case even 10 to 15 years. A railway employee at the age of 58 years was falsely implicated for sexual assault to settle a score and the trial ended when he was at the age of 70 years i.e he had to face ordeal for 12 years at a time when he was to settle peacefully and having no other income where his all terminal benefits were kept on hold have to struggle for even bread and butter at the fag end of his life. No amount of compensation can bring back his sufferings for about 12 years at the fag end of his life.

11.  The proposed laws may also recommend setting up of Ministry for Men or Men Commission on the similar lines of Women Commission keeping in view the “Principle of Natural Justice”. The accused to be arrested only after establishing of prima facie evidences and not in a routine manner. While the state machinery may be set into motion immediately on receipt of a simple complaint, FIR may be registered only after receiving the complaint on an affidavit.

12.  The accused should be treated as innocent unless proven guilty. The charges need to be proved instead of proving innocence.

13.  Any case being dragged beyond the stipulated period of justice delivery should be reflected in the ACR of all stakeholders.

14.  The returns of assets of all officials involved in the implementing agencies be made publically and updated regularly on annual basis.

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