State-wise changes in rape law: Similarities & differences between Bengal, Andhra, and Maharashtra Bills

 Source: Deccan Herald

Before Bengal's Aparajita Bill, Andhra Pradesh, and Maharashtra had passed similar bills for women's safety that prescribed death penalties for rapists. Here are the key features, similarities, and differences in the three state bills. To read more please go to the following link:

https://www.deccanherald.com/india/state-wise-changes-in-rape-lawilarities-differences-between-bengal-andhra-and-maharashtra-bills-3178137

A road map to deliver justice to child survivors

Source: Hindustan Times dated 17.01.2020

Prabhat Kumar (Head, Child Protection) and Manish Thakre (Head, Urban Programme and Policy) at Save the Children.

The pendency of cases under the Pocso Act is worrying. A dedicated and specialised cadre is urgently needed.

Justice delayed is justice denied. Pendency of Protection of Children against Sexual Offences Act, 2012, (Pocso), cases is causing tremendous harm to child survivors who are seeking timely justice across India. The Act stipulates that a case of child sexual abuse must be disposed-off within a year from the date the offence is reported. However, there are 160,989 cases of Pocso Act pending trial in courts across the country. Timely availability of data (age- and gender-based segregation) is also a big concern at the state, district and town level. In September 2019, the law ministry proposed a scheme to have fast track special courts (FTSC) for the expeditious disposal of cases of rape and Pocso Act. There are 389 districts in the country in which the number of pending cases under the Pocso Act exceeds 100.

The Out of Shadow Index, a benchmarking index developed by the Economist Intelligence Unit, examines how stakeholders in 40 countries are responding to the threat of child sexual abuse and exploitation. India ranks 15th on this index, with a score of 57.6 out of 100. The key indicators important for criminal justice delivery process on which India scores 50 or less includes access to victim support programmes, complaint mechanism, civil society engagement, protecting child interests, child-specific rape laws, contextual legal framework, national plans and policies, government and law enforcement capacity and social protection. This research also specifically recommend strengthening participation by and support from non-governmental groups.

Since the inception of the Pocso Act, there has been an increase in reporting of child sexual abuse cases. On the other hand, there have been concerns raised about the criminal justice delivery mechanism, quality of investigation, availability of support person, medical investigation, legal aid, compensation to victims, and transparency in preparation of record by forensics science laboratory.

According to the recent report on Pocso by the registrar of the Supreme Court, there are 36% of cases where time taken for completion of investigation is more than six months (in 20% cases, it is more than a year). In 49% of the cases, it took more than a month for the police to deposit samples with forensics laboratories. Inexcusably, there are 96% cases without a support person, and 99% cases in which interim and final compensation is not provided. Moreover, two-thirds of the cases are pending trial for more than a year.

Child survivors are already traumatised and subjected to secondary victimisation due to the existing faulty justice delivery mechanism. Handling the cases of child survivors by non-specialised or inexperienced key stakeholders and institutions — such as investigation officer, medical officer, support person (Child Welfare Committee), counsellor/psychologist/mental health expert (District Child Protection Unit), Juvenile Justice Board, Legal Aid Counsel (DLSA) and Special Public Prosecutor — makes this process cumbersome and painful for child survivors and their families. This often results into frequent adjournment of children’s testimony, delay in disposal of cases, or survivors turning hostile.

Considering the existing status of Pocso cases, it is necessary to bring improvement in delivering justice to survivors in a child-friendly manner, and within the stipulated time. It can be achieved by building capacities of the key stakeholders and institutions as provisioned under the Pocso Act 2012. Therefore, it is essential for the concerned authorities to invest collectively in creating a cadre of district- and state-level professionals, covering the aforementioned key stakeholders for expediting the justice delivery process in a sensitive manner.

The selection and performance appraisal processes for these professional stakeholders must be scrutinised and reviewed periodically to ensure accountability, transparency and effectiveness of service delivery. These key stakeholders have to be acquainted with good practices through their peers who have achieved results in such cases. They should be exposed to stress management techniques and related trainings for their healthy work-life balance. A child sensitive lens in their day-to-day working will build trust with the survivors and their families, and may also help reduce their trauma. The stakeholders’ orientation, experience, knowledge and skills in accordance to the mandated guidelines as well as the child-friendly interventions during the pre-trial and trial process make the system robust and helps in speedy trial and reduction of pendency of cases.

The concerned government authorities, along with child-friendly FTSC, should leverage appropriate technology for tracking the cases in real time. The concerned departments should pool in resources to focus on developing a cadre of professionals to support child survivors. They may allow interns or junior officers to accompany or support key stakeholders during the investigation and trial process. They should engage with local non-governmental organisations and leverage social media to create awareness among masses about Pocso Act. A professional, skilful and passionate human resource is the need of the hour. It will strengthen the judicial process, and help child survivors seek justice in a child-friendly manner.

To deter rapes, cases of heinous nature should be expedited all the way through different levels of the judiciary

Source: Times of India dated 02.01.2020

-- Arunav Kaul (Works in the area of judicial reform at Daksh)

The recent cases of rape and sexual harassment have shocked the conscience of the country. And the cry to set up more fast-track courts that can swiftly deal with these cases has been growing. In July 2019, the Centre had proposed a plan to set up 1,023 fast-track special courts (FTSCs) that would specifically deal with pending cases of rape and cases under the Protection of Children Against Sexual Offences (Pocso) Act. As of March 31, 2018, there were 1,66,882 cases of rape and Pocso Act pending in trial courts across the country.

Government has recently released a detailed plan laying out the implementation framework for the FTSCs scheme: states and UTs were given a cutoff date of December 31, 2019, within which they needed to communicate their concurrence for coming on board. Post the launch, FTSCs would be initially set up for a period of one year subject to further approval.

Delay in disposal of cases is an issue of serious concern not just at the subordinate court level but at different appellate levels of the judiciary. But a lot of the government initiatives to fasttrack cases in courts have primarily been focussed around the subordinate courts. To reduce delays, it is important that reforms should be introduced not only in subordinate courts but in high courts as well as in the Supreme Court.

As per a reply submitted in Rajya Sabha in June 2019, close to 43 lakh cases are pending in HCs with nearly 8 lakh cases pending for more than a decade. Criminal cases arising from lower courts form a huge proportion in HCs too. As per the recent SC annual report, as of June 30, 2018, there were close to 7.5 lakh criminal appeals and criminal revision cases that were pending in HCs. Allahabad HC topped the chart followed by the Madhya Pradesh HC and the Punjab and Haryana HC.

A similar trend can be seen even in the SC. Daksh’s study of the SC cases between January and November 2018 revealed that most number of judgments pertained to criminal matters, with cases taking 4.6 years on an average to get disposed. Hence, it is imperative that focus should be shifted towards all the tiers of the judiciary. To render complete justice cases of certain nature should be fast-tracked all the way up till the SC and until the final execution of the punishment.

It must be noted that in the Nirbhaya case, the trial in the subordinate court was completed swiftly within 8 months and in the Delhi HC within a span of 6 months. However, it took the SC nearly 3 years to deliver the final verdict. And even though the apex court confirmed the death sentence in 2017, none of the convicts has been hanged till date. If the intention behind capital punishment is to deter future crimes, then why is there an inordinate delay in execution of the sentences? With delay being caused both from the judicial and the executive front, such deterrence is difficult to achieve.

Another important measure that government needs to undertake is to make FTCs permanent in all the states. The non-permanent nature of the FTCs has been a persistent issue. The scheme was first introduced by the Centre in 2000 and FTCs continued functioning in different states supported by the central funding until 2011. Between 2000 and 2011, Rs 870 crore were released by the Centre towards the scheme. Post 2011, a lot of states abolished FTCs and as of March 2019, there were only 581 FTCs functioning in the country.

A baseline survey conducted by a research centre at the National Law University, Delhi revealed that FTCs are facing several issues, ranging from poor infrastructure to lack of proper manpower. Even under the current plan for FTSCs, it is clear that the scheme will be in operation only for a temporary period of time. Judges are required to specifically target the 1,66,882 pending cases of rape and Pocso Act. The remaining cases are expected to be dealt either by FTCs that would be established under the 15th Finance Commission from 2020-25 or any other FTCs that the states/UTs establish.

Government and judiciary need to adopt not a short-term plan but a longterm framework such as permanently establishing FTCs and ensuring that cases of heinous nature are expedited all the way through different levels of the judiciary. The three key players, that is the state government, central government and judiciary need to come together to bring concrete changes to the system. These reforms should be formulated with the objective of addressing systemic and deep-entrenched issues, and leave a long-lasting impact on the system.

Adult victims of trafficking can't be compelled to abide by anyone or family's wishes, observes court

Article in the Indian Express dated August 7, 2019 regarding Immoral Trafficking by Sadaf Modak. Link to this article:

http://epaper.indianexpress.com/c/42237278

What HC suggested on age of consent and age gap, and the implications

Article in the Indian Express dated April 30, 2019 regarding the POCSO Act by Kaunain Sheriff M. and Abantika Ghosh. Link to this article:

http://epaper.indianexpress.com/c/38960168

Guilty till proved innocent

Article in the Indian Express dated January 3, 2019 regarding the amendment in the POCSO Act, 2012 by Arundhati Katju. Link to this article:

http://epaper.indianexpress.com/c/35442130

5 years after the Sexual Harassment at the Workplace Act

Article in the Indian Express dated December 3, 2018 regarding review of five years of the Sexual Harassment at the Workplace Act. Link to this article:

http://epaper.indianexpress.com/c/34549015

Sexual Harassment at the Workplace

Source: Indian Express, Mumbai, 10 October 2018

SEXUAL HARASSMENT AT WORKPLACE

Source: Times of India, Mumbai, 10 October 2018

If you touch a woman inappropriately, you could go to jail for 5 yrs

As India has its #MeToo moment, here’s a look at the laws that are in place to make our workplaces safe for women. Vishaka guidelines, promulgated by the Supreme Court, were in place since 1997. This was superseded in December 2013, when the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, or POSH Act, was passed. The Criminal Law (Amendment) Act, 2013, was also passed and Section 354 was added to the Indian Penal Code. This defines sexual harassment and the penalties for the offence. Additionally, with sexual harassment being a crime, employers are obligated to report offences

Can a woman outrage modesty of another?

Source: The Times of India dated 28.02.2014

‘Can a woman outrage modesty of another?’ 
Court Seeks To Know Legal Provision

Rosy Sequeira TNN 

Mumbai: The Bombay high court on Thursday questioned if a woman can be accused of outraging the modesty of another woman and sought the legal provisions for it. 
    A division bench of Justice Naresh Patil and Justice V L Achliya on Thursday heard a petition by a family of six from a Borivli housing society, including the 78-year-old matriarch Sarlaben Shah, seeking to quash an FIR filed against them by neighbour Preeta Jain (55). 
    It started with a dispute over grilles that the Shahs fitted outside their ground-floor flat, which was opposed by their neighbours, including the Jain family. During an argument, Sarlaben’s granddaughter was allegedly assaulted and manhandled. On October 23, 2009, she lodged a complaint of molestation against Jain’s son and husband and an FIR was registered. 
    A few months later, on February 27, 2010, the Jains also got an FIR registered against the Shahs and the charges included molestation. 
    In the court, Shah’s advocate Pradeep Havnur questioned how two FIRs could be registered for the same incident. “It is absurd that a 78-year-old woman can be accused of molesting another woman,” he exclaimed. At that, the judges questioned if a woman could indeed molest another woman and what was the legal position. “This is a serious question. Can a woman molest another woman? Even scientifically? Because there are the allegations,” said Justice Patil. “Go through the law. If a woman does commit such an act, can she be tried under the available law for molesting a woman?” 
    On going through section 354 of the IPC, the judges noted that while the section began with the word “whoever”, it later went on to refer to the accused as a “he” and the victim a “she”. “Can a woman be accused of outraging the modesty of another woman under section 354? Get the legal position,” said Justice Patil to Havnur. The judges pointed out that even the amended section 354 A referred to an act committed by a man on a woman. While parting with the matter, the judges said housing societies must intervene and sort out such problems instead of parties filing cross-complaints and coming to court. 
    (Names of disputing parties changed) 

SPAT AT BORIVLI SOCIETY 
In 2009, the Shah family in Borivli fitted grilles outside their groundfloor flat, which was apparently opposed by some of their neighbours, including Preeta Jain’s family. During an argument, the Shah family matriarch’s granddaughter was allegedly assaulted and manhandled. They lodged a complaint of molestation against Jain’s son and husband on Oct 23, 2009. On Feb 27, 2010, the Jains lodged a counter-complaint, against the Shahs, one of the charges being molestation 
Section 354 of Indian Penal Code 
Assault or criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage her modesty, shall be punished with imprisonment which may extend to two years, or with fine, or with both

Mind the legal gap

To read the opinion of Upendra Baxi on Sexual harassment at the workplace in context with the Justice Ganguly case, click on the following link:
http://epaper.indianexpress.com/c/2077883

When misreading becomes law

When misreading becomes law: the Victorian-era IPC created the legal category of 'unnatural offences' - to read this article in the Indian Express dated 12.12.2013, click on the following link:

http://epaper.indianexpress.com/c/2055087

Sexual Harassment at the Workplace

To read an article about the Sexual Harassment at the Workplace from the Indian Express dated 28th November 2013, click on the following link:
http://epaper.indianexpress.com/c/1984174

Certainty of punishment is the real deterrent

To read an article in the Indian Express dated 27.08.2013 by G. P. Joshi arguing that the CERTAINTY of punishment, not its SEVERITY is the real deterrent, click on the following link:
http://epaper.indianexpress.com/c/1547393

Criminal Law (Amendment) Ordinance, 2013

Criminal Law (Amendment) Ordinance, 2013

To read an article on this topic from the Indian Express dated 12.2.2013, copy and paste the link in your browser:

http://epaper.indianexpress.com/c/774353

Source: Times of India

Changes to law will clearly define unwelcome sexual acts

TNN | Feb 2, 2013
Changes to the criminal law dealing with offences against women cleared by the Cabinet aim to not only add specific new crimes but move the focus from interpreting terms like "modesty of a woman" to clear cut definitions of unwelcome sexual acts.

The government has acted on the Justice J S Verma committee's view that provisions dealing with sexual assault need to be looked at afresh in the light of the need to cover a range of offences that need a higher degree of punishment.

Intentional contact intended to harass a person or threat of sexual violence will be dealt with under the enhanced definition of sexual assault that seeks to plug loopholes exploited by offenders seeking to argue subjectively on what constitutes "outraging the modesty of a woman".

The government, however, did not accept the Verma committee's view on criminalizing marital non-consensual intercourse. The issue of rape by armed forces as a specific category was also not accepted.

The pending Criminal Law Amendment Bill, 2012 criminalizes sexual activities between the age of 16 to 18 years with which the Verma committee did not agree. This will mean that once the bill is passed, age of consent will become 18.

Acid attacks, a frequently reported crime often motivated by desire for revenge on an advance being rejected or a relationship souring, are seen in the context of the long-term impairment caused to a victim's right to live with dignity.

Besides the act of throwing acid on a woman, the permanent or partial damage caused to the victim should be taken into account, the Verma committee had recommended.

Just like acid attacks, public disrobing of women is often resorted to as an act of vengeance for being spurned. Additionally, caste prejudice and women being relatively defenceless victims for enmity harboured with male members of a family also lead to disrobing.

Stalking has been seen by the Verma committee as an act that can curb a woman's right to freedom of expression and even education in terms of younger victims. The specific offence will deal with acts of electronic intrusion and hacking. It will also address attempts to foist unwelcome attention and threat of violence.

The tough and graded punishments for rape, rape that results in severe physical damage and rape that leads to death are important amendments that have been dealt with. Aggravated rape will be punishable with 20 years jail or life term than will mean till the extent of natural life.

Changes in laws dealing with evidence are particularly significant. The question of moral character will not be put to a woman during cross-examination and there will be a presumption of lack of consent in certain prosecution cases.

Just as moral character will not be factor, neither will the sexual history or experience of a victim be deemed relevant in adjudging whether sexual assault has been committed.

This will mean that if sexual intercourse is established by the prosecution, the issue that will need to be evaluated is one of consent. 

Interview of Steven Pinker on Women's Rights

Source: Times of India

Steven Pinker: US women's rights movement made lawmakers treat rape seriously

By Srijana Mitra Das | Jan 14, 2013, 12.00 AM IST

Steven Pinker, professor of psychology at Harvard University, is a highly distinguished researcher of violence and peace. Speaking with Srijana Mitra Das, Pinker discussed the Delhi gang rape, the Newtown shooting, how the West won against sexual crimes - and why there's reason to feel hopeful, despite violent incidents:

How do you explain violence like the Newtown shooting and the Delhi gang rape, where the vulnerable are badly hurt?

There's no single explanation. In my book, The Better Angels of Our Nature, i identify five psychological mechanisms that impel people to commit acts of violence, together with four psychological mechanisms - the 'better angels' - which inhibit us from violence. These two atrocities have very different causes. The Delhi gang rape is easier to explain. Rape is an extreme end of a continuum of male sexuality - males pursue sexual partners more ardently and indiscriminately than females. Ordinarily, this leads men to woo, proposition, seduce - but in unregulated settings and when men are desperate, low in empathy and self-control, it can lead to harassment and rape. This can be exacerbated in cultures that practise female-selective infanticide. That leaves large numbers of unattached men, generally poor and marginalised, who prey for sexual opportunities. The rampage shootings in the US are less readily explained. Three things go into them - mental illness, low status that triggers a desire for revenge and a desire for fame, even posthumously, killing innocent people the only way of becoming famous. In that way, rampage killers overlap with suicide terrorists.

You write the West slashed high incidences of rape - how?

Part of the decline was interwoven with a decline in violent crime in general. More police were put on the street - they worked closely with communities, statistics were kept on violent neighbourhoods, extra resources deployed there, violent criminals kept in jail for longer periods, better lights, locks and emergency phones were made available. But the decline of rape was more dramatic than the decline of homicide. I credit the women's rights movement and its decision to target rape, harassment and domestic abuse. Women worked with lawmakers, courts and police to treat rape and harassment seriously. Popular culture changed - no more jokes about rape, harassment or spousal abuse. More rapists were deterred - or, if deterrence failed, thrown into jail. Even minor harassment or unwanted touching were punished. All this came about when women began to assume positions of power and make their interests known. It happened quickly because their arguments were irrefutable - no decent person can honestly argue that rape and harassment are justifiable or that we need to tolerate them.

What is the basis of a civilised society?

A decent government with an effective, but not gratuitously violent, police force and a fair court system are essential. This deters and incapacitates psychopaths, bullies and hotheads - and if it earns the confidence of the people, they don't have to become violent in self-defence.

In moments of seeming social collapse, what gives you hope?

We are not in social collapse - this is an illusion created by excessive media coverage of the most dramatic violent events. Rape, once considered acceptable in war and courtship, is now unacceptable. In most parts of the world, it's declined. Rampage killings are extraordinarily rare. In the US, though 27 people were killed in Newtown, 40 people are killed everyday - but the media doesn't cover those killings. And in many countries, homicide rates have come way down over recent years.

Article about the system tilted against the disabled who seek recourse in sexual offence cases

Copy and paste this link in the browser for this article:

http://epaper.indianexpress.com/c/668263