Tag Archive for Justice Verma

Justice J.S.Verma: In memoriam

Justice Verma

To pay tribute to the man who left a legacy of justice is to promise to keep the fight ongoing

By Farah Naqvi

On April 22, 2013, India lost a man who stood taller than others. In a lifetime of work he unwaveringly upheld the values of our Constitution and deployed them to uphold rights of those most weakened, most marginalized – whether by the deliberate tragedies created by vicious state politics or by the ubiquitous hierarchies of a patriarchal social order. He stood up for the rights of women, for justice in Gujarat, and for so much more.

Justice J. S. Verma led from the front. He led with integrity, honesty and a fearless ability to hold accountable the State, even the Judiciary and certainly society as a whole. Both as Judge and as citizen he spoke boldly a language of justice on the many complex issues that define our times. He dug into the depth of the horrors in Gujarat to craft the NHRC report in 2002. And 10 years later he pierced through the resilient patriarchy of Indian society to craft the Justice Verma Committee report in 2013. Both with the same deep intellect and instinctive clarity on what was right and what was just.

Way back in 1997 he headed the three member Supreme Court bench that gave us the Vishakha Judgment, a time when ‘sexual harassment in the workplace’ was little more than a collection of meaningless words to most Indians, and he lived to see that judgment translate itself into an Act.

Most recently, on January 19-20, 2013, at the hearing of the Justice Verma Committee, the stamina of seasoned women’s rights activists, to sit for endless hours, to speak for endless hours, was more than tested by the stamina of the committee members, including Justice Verma, Justice Leila Seth and Gopal Subramanium who sat without break, and listened and absorbed till late into the evenings.

The JVC report shall remain a historic report, because it sliced through the layers of patriarchy, not by peeling one layer at a time, but in dealing sharp, clear blows to its very core

Justice Verma turned 80 just before he formally handed the JVC report to the government. This gift – not for himself but for the women of India – shall remain a historic report, because it sliced through the layers of patriarchy, not by peeling one layer at a time, but in dealing sharp, clear blows to its very core. Parts of the JVC Report have found their way into the Criminal Law Amendment Act 2013. Other parts remain an unfinished agenda. And the lasting tribute of the women’s movement, to this extraordinary Jurist and human being, can only be to stay the course on this long journey on which he joined us, leaving a milestone in his wake.

At his funeral there were several of us, women’s rights activists of many different hues standing together, joined in a moment of respect and gratitude, silently owning his legacy, silently promising to take it forward.

Farah Naqvi is a Delhi based activist and writer

Justice Verma: A judge who fought for women’s rights

The Criminal Law (Amendment) Bill, 2013: Facts & Myths

Criminal law bill India

By Team FI

A group of feminist activists and lawyers in India have created a facts and myths sheet to educate the public about the certain aspects of the Criminal law (Amendment) Bill, 2013, which have generated a lot of pro and con discussions. The fact sheet circulated yesterday is published below.

The Justice Verma Committee (JVC) report was a landmark statement, applauded by all citizens, welcomed by all Political Parties. JVC was significant because it showed a mirror to the Constitution of India, and reflected its wise and just guarantees of women’s equality. Today the women and youth of India are looking with hope and expectation towards Parliament, and towards all Political Parties. We urge all Members of Parliament to pass a law upholding the spirit and letter of the Justice Verma Committee; to pass a law that makes a step forward in our collective struggle to end sexual violence in India.

Myth 1: The Criminal Law (Amendment) Bill 2013 is against men.

Fact: The new anti-sexual violence Bill is NOT against men. For our fathers, brothers, husbands, partners, neighbours and colleagues are men too. Are these Men in our lives not committed to seeking an end to the constant threat of sexual violence lurking around every corner? Yes, men must, and men do support this Bill. For this bill is against criminals. It is against the scourge of sexual violence, and seeks to prevent and protect our society from heinous sexual crimes like rape, molestation, disrobing and parading women or stalking.

We know that men too can be vulnerable to sexual attacks by criminal men. And we welcome the Bill’s recognition that both men and women can be victims of acid attack and provides protection to all ‘persons’ for these offences. But we further ask you, our Parliamentarians, to recognize that men must also be protected against the crime of rape and custodial rape committed by other men, and to change the definition of victim in section 375 and section 376 (2) to ‘person’ and not restrict victimhood in these instances to women alone. Men and women are and must remain partners in this battle against sexual violence.And all‘persons’ deserve protection of the law against rape.

Myth 2: If the age of consent for sexual act is lowered to 16 years, this will encourage child marriage, prostitution and trafficking.

Fact: The age of consent for sexual relations in India has stood at 16 years for the last 30 years, since 1983. The age was increased without adequate public discussion in the Protection of Children from Sexual Offences Act, May 2012, 9 months ago, and later, in the hasty Criminal Law (Amendment) Ordinance of Feb 4th 2013. The JVC report recommends that it be retained at 16 years as it always has been in the IPC, to prevent criminalization of young persons for consensual sex. Women’s groups are merely asking for it to be retained at 16 years, rather than increase it unthinkingly to 18 years.

Retaining age of consent at 16 years does not mean social or moral endorsement or encouragement of teenage sexual activity. The law is not asking young people to do this or that. This is merely an acknowledgement that if two young people consensually decide to engage in sexual contact, we might want to teach them and educate them but we do not want to treat them instantly as criminals, or consign them to custody. For that is what ‘age of consent’ means – it means that a boy who has sexual contact with someone below the age of consent is committing statutory rape. If that age is now raised to 18, it means that boys of 16-18 years, or slightly older, will be held guilty of committing statutory rape if they have consensual sex with another person who is also between 16-18 years. In such cases, the judge will have no discretion under law and will be forced to place such boys in protection home (if under 18 years) or in jails (18 or above).

Indian society does not wish to treat as criminals and rapists young men and women who might engage in consensual sexual acts. For we must recognize that ‘criminalizing as RAPE’, the consensual acts of young adults, will make most vulnerable our young men, particularly those from marginalized communities. Third party complaints of statutory rape against young boys will force the Courts to condemn them to prison (if over 18) or protection homes for juveniles (if under 18) for committing no crime other than consensual sexual contact.

We must retain the age at 16 because raising the age to 18 years does not provide additional protection to young women against rape or sexual assault. It only serves to increase societal control over the lives and decisions of young persons, both young men and women. To protect their fundamental rights including the right to choice and sexual autonomy and agency, the law must keep 16 years as the age of consent for sexual acts.

Why should the age of marriage be 18 years and consent for sexual acts be retained at 16 years?

The age of marriage must be retained at 18 years. Marriage is a serious commitment and entails many long-term responsibilities of life, and it is appropriate to keep the age of marriage at 18 years. But there is no merit or useful purpose served by keeping one uniform legal age for every act of a human being. Studies, surveys and research conducted across India, including in rural India, all indicate that young people are engaging in consensual sexual activity between the ages of 16-18 years. The anxiety and legitimate concerns of parents on this count is real and valid. However, the answer to that lies outside the law – in education in schools and within families, and communication between the parents, teachers and young persons.

Retaining the age of consent at 16 years is only to ensure that when teenagers engage in consensual sexual activity, it does not lead to young boys being punished and imprisoned. Retaining age of consent for sexual contact at 16 years does not have any bearing or adverse impact on the efforts to prevent child marriage, to which we all stand committed.

In any case, marriage of persons under 18 years is legal and valid under the law. Consequently, sex between spouses, one or both of who may be between 16-18 years is not criminalized. Raising the age of consent to 18 years, treats consensual sex between married persons, one or both of whom may be between 16-18 years, differentially from sex between unmarried persons of the same age group. Tainting an unmarried boy of under or above 18 years with the stigma of criminality for consensual sex is unduly harsh and discriminatory, when compared with the legal status of a married boy of the same age.

Will the age of consent at 16 years lead to more trafficking and forced prostitution of women and children?

It must be emphasized that key to the definition of RAPE is the absence of consent of the woman. Each case where there is such absence of consent must be treated as a crime and punished.

In the case of trafficking and forced prostitution this issue of ‘consent’ whether at 16 or 18 is totally irrelevant. In cases of trafficking or forced prostitution, the consent of the girl or woman at any age is neither free nor voluntary; it is coerced and hence in the eyes of law does not amount to consent. The issue of age is irrelevant in all cases of trafficking and forced prostitution. As pointed out in the Justice Verma Committee Report, the police and other powerful forces are complicit in the crime of trafficking and forcing women and children into exploitative work. The 2013 Bill has special provisions to deal with Trafficking and we must ensure that these are rigorously enforced by the police.

Myth 3: The offences of Voyeurism and Stalking will trap innocent men.

Fact: The offence of Voyeurism as defined in Sec. 354C IPC, is very specific and pointed in scope and has no possibility of misuse or abuse. In villages, towns and cities, we know that the poor do not enjoy the luxury of a private bathroom in their homes. This makes the young girls and women particularly vulnerable to sexual abuse even as they perform routine activities of bathing, attending to the call of nature in fields and open public places. They are always fearful of men who may use this occasion to watch them or take pictures of them as they perform these private activities. The offence of Voyeurism will punish a man who watches or records a woman while she is in any private act where her private body parts may be exposed. This offence seeks to uphold the dignity of women and makes the violation of their fundamental right to privacy a crime.

Stalking: The crime of stalking takes a serious toll on the life of women. Gripped by fear and anxiety due to being repeatedly followed by a man, girls and women have been forced to drop out of education, quit jobs and even change homes to escape the stalker. The rape and murder of the young law student Priyadarshini Mattoo, is a grim reminder that if the stalker is not stopped, he can rape and kill. Stalkers are also known to throw acid on their victims, as a way to take revenge. By making stalking a crime, the law can actually prevent rape and other forms of aggravated sexual crimes and save innocent women from being brutally sexually assaulted or killed. The codification of this crime will fill an important lacuna in the present law. Only in situations where a man repeatedly follows a woman, either physically or through the Internet and this causes her fear or distress, will the crime of stalking be recognised as such.

Featured illustration by FeministsIndia

Criminal law bill 2013: one step forward, two steps backward, say activists

India

Women’s groups call for changes in the new Criminal Law (Amendment) Bill 2013, passed by the Union Government of India

By Team FI

Women’s groups and representatives of democratic and human rights groups, have called the Union Government’s Criminal Law (Amendment) (CLA) Bill 2013, as “taking one step forward and two steps back” in relation to “creating a law which is truly just, progressive and reflects the reality of contemporary India.”

The press release, issued after the Union Government passed the CLA Bill on March 15, 2013 states that though certain points in the CLA Bill are welcome, there are other areas where major lacunae causes serious concern. The issues raised includes the demand for the usage of the term gender-neutral for the victim of sexual violence emphasizing that victims of sexual violence are not only women but also men, and those who do not subscribe to the “normal” gender roles, that marital rape should be recognized as sexual violence, that laws that provide impunity to armed forces in relation to sexual violence must be removed and that the word “forced” to be added to the word prostitution to distinguish it from voluntary sex work.

The press release said that they welcome the fact that “only men may be accused of rape under Section 375 IPC of the Act which reflects the prevalence of the crime and reality of rape as an exercise of power in a deeply patriarchal society.” They also appreciated that stalking and voyeurism would now be non-bailable for repeat offenders. They support reducing the minimum age consent for sexual activity to 16. They also welcome that minimum imprisonment would be provided for public servants who “knowingly disobey the law.” And that “no prior sanction will be required from the government for prosecution of public servants for crimes of sexual violence.”

The following are however the areas where activists have expressed their dissatisfaction and concern. The press releases calls on the members of parliament to discuss these issues and follow the recommendations of the Justice Verma committee in letter and spirit for truly gender-just laws in India.

The press release reads:

Gender neutral victim: Victims of sexual violence are not only women but other men, and those who transgress or don’t fit into so-called “normal” gender roles – like transgender people, hijras, people with intersex variations etc. Repeated sexual offences against hijras are common knowledge and the Khairlanji events show how egregiously men can be sexually humiliated and violated by other men. While perpetrators of sexual violence must be men; the victims should be “persons”, i.e. gender neutral in appropriate sections.

Marital rape: This continues to be legal in India despite controls being proposed to address concerns of abuse. Women separated under judicial decree or otherwise, are the only ones with any protection. Ironically, complaints about marital rape are considered to go against traditional values and pose a threat to the institution of marriage, but the crime itself does not evoke such strong sanction. This is a deep failure in our laws.

Dignity and bodily integrity, not “modesty”: The language of “outraging the modesty of women” remains despite its subjective, patriarchal and moralistic nature – it should be replaced with “dignity and bodily integrity”.

No impunity under AFSPA: Laws like AFSPA, which provide total impunity to the armed forces, must go, as said by the Justice Verma Committee. We know that rape and sexual assault in areas under army control are widespread. Such offences are almost never adequately prosecuted by the institutions involved. We demand the all such cases be tried under normal criminal law in criminal courts.

Command responsibility: In cases of sexual assault committed by state personnel, authorities higher up in the hierarchy should be held liable for dereliction of duty by those under their command if they knew or should have known of the lapse.

Aggravated assault: Sexual violence committed in the context of communal or sectarian violence, or across caste-lines, is of an aggravated nature and must be treated as such.

No death penalty: Awarding death penalty in cases of sexual assault will have serious negative consequences. It is not the severity of punishment but the certainty of it that will act has a real deterrent. In fact the death penalty could increase instances of murder by rapists to keep the victim out of the witness box.

Trafficking, not voluntary sex work: We strongly agree with the prohibition of trafficking but at the same time it’s important that the government distinguishes “forced prostitution” from voluntary sex work. We propose adding the word “forced” to Article 370 to make this distinction clear.

Medical treatment and reparations: For the victim of an acid attack, sexual assault or rape, there is an immediate need from the time of injury of medical treatment, access to a safe place, surgeries, and on-going rehabilitation-related expenses. These must be borne by the State, whether it draws from a State fund, or recovers from the accused or from any other source.