An open letter to Justice J.S. Verma
Dear Justice J.S. Verma,
This is the second time I am writing a letter to you. The first was soon after you retired as Chief Justice of India in early 1998. On our request, you had written an article for the Indian Express, where I was in charge of the editorial page. A cheque was sent to you from the accounts department along with a voucher full of cryptic abbreviations that made it look like some version of the Da Vinci Code.
You could make neither head nor tail of the payment and you sent the cheque back to us with a question mark. It was my job to send you a revalidated cheque with an explanatory letter and you were gracious enough to accept the payment, though you refused to write a regular column for us.
It is a measure of the confidence the people have in you that the government has appointed you to head the three-member committee to suggest legal steps to counter the growing threat of rape women face in this country. Former Chief Justice of the Himachal Pradesh High Court Justice Leila Seth and former Solicitor General Gopal Subramaniam, who are your co-members, are persons of exceptional personal integrity and legal acumen. As a citizen, I trust your collective ability to come up with some practical suggestions.
Cynical governments have in the past appointed judges like you, more to control situations from going out of control than to seek solutions to problems. The Sri Krishna Commission, which went into the Mumbai riots, is a case in point.
This time I give the government the benefit of the doubt because your brief is limited and you have been given just a month to complete your work. Neither the economy, nor the population has grown at the rate at which incidents of rape have increased – a whopping 740 per cent since 1953, when statistics on the subject began to be tabulated by the National Crime Records Bureau.
To be frank, there would have been no need to give you this task when you could have been enjoying your post-retirement life, if the government had cared to read and implement the recommendations of at least four Law Commissions on strengthening the anti-rape laws.
Before I come to the subject, let me request you to revisit the law (Section 228A of the IPC) that prevents the media from revealing the identity of the 23-year-old girl, who was gang-raped on December 16 and who died in Singapore on December 29. The law should be valid only in rape cases, not in rape and murder cases.
The death of the girl has transformed the rape case; the main charge the six rapists, including the so-called juvenile, face is murder. The tragedy apart, any person would love to have such a girl as his daughter or sister. She was so good in her studies that her father sold his property to pay her fees, which came to Rs 1.80 lakh.
As reports suggest, she was a role model for the youth in her locality, who would find the light switched on in her one-room house in New Delhi late into the night, as she was busy studying. Now that she is no more, why should the government threaten the media of action if her name is revealed?
In the absence of a real name, the Times of India called her Nirbhay (Fearless) and Outlook christened her Jagruti (Awakened). Let me call her Jyoti (Light), which also fits her well. Few people have noticed that she was an extraordinarily brave girl, who risked her life in protecting her friend. I have heard some people ask why she was with that boy at that time. She was betrothed to him and they were to marry in February next. They had gone to watch the movie "Life of Pi" at a mall in Saket (6 pm show) and were returning home on a bus!
You would have noticed Union Minister Shashi Tharoor's suggestion that the new anti-rape law should be named after the brave girl. The government's response has been disheartening, to say the least. It says it is an American practice to name a Bill after the Congressman who moved it and no provision in the Indian Penal Code can be named after an individual. Lawmakers have to be creative and they should not behave like prisoners of tradition. The heavens will not fall if the new Bill you are supposed to propose says after the brief introduction, "hereinafter called Jyoti law". There are some precedents for it.
Even those who have only a modicum of knowledge of law have heard about the Sarda Act. I do not have to tell you that the Act refers to the Child Marriage Restraint Act, 1929, passed by the British India Legislature on September 28, 1929. It fixed the age of marriage for girls at 14 years and boys at 18 years. It is known by the name of its sponsor, Rai Sahib Harbilas Sarda.
In 1997, the Supreme Court had issued certain guidelines to be followed by every organization employing women to deal with the problem of "sexual harassment at the workplace". It is popularly known as "Vishakha Guidelines". Given these examples, it should be possible for you to creatively name the new law after 'Jyoti', for which all those who were saddened by her death and protested against it in various ways would be eternally grateful to you.
First and foremost, you should redefine rape, which the dictionary defines as "the ravishing or the violation of a woman". But the definition of rape, as in Section 375 of IPC, still stresses on 'penetration'. Though judicial verdicts have modified the Victorian-era law of 1860 to treat a girl as "raped" even if her hymen was intact, provided there was a penis-vagina contact, we have not moved forward on this issue. I do not have to tell you that rape is committed not for sexual gratification alone but to humiliate a person or an entire community represented by her.
Thus rape needs to be redefined. Violation or ravishing of a girl can happen even when she is just inappropriately touched. If the intention is to sexually humiliate or shame her, it should be treated as rape. In fact, there is a strong case for grading of rapes and fixing appropriate and graded punishments. Touching, groping etc in buses, cinema theatres and other public places without the intention of sexual intercourse should be treated as a minor form of rape and a rigorous imprisonment of five years should be fixed.
Attempt to rape in secluded places, which could have led to forced sex, should be treated separately and a punishment of 10 years' rigorous imprisonment would be ideal. If it is a gang rape attempt, every gangster should get 15 years of rigorous imprisonment.
In case a man has forced sex with a girl, the punishment should be 20 years of RI. If it is a gang rape, the punishment should go up to 25 years of RI for each member. If the girl dies because of rape or she is killed, the punishment should be imprisonment till death.
If you feel that death penalty is warranted in "rape-cum-murder" cases, it is fine, though I am personally against capital punishment. In all these cases, if the accused is a uniformed person or an employee of the government, five extra years of imprisonment should be awarded. Similarly, if the victim is a minor, five extra years of imprisonment should be added to the quantum of punishment.
There are now special courts to hear cases related to environment, service matters, labour issues etc. Why not have special courts to hear women-related cases in all the districts? I believe that it is the certainty of punishment, rather than the severity of it, which deters crime. Given this truth, it is a must that hearing of rape cases should be quick.
Ideally, the police should file a case within three months of the occurrence of rape; the court should complete the hearing in three months; the higher court should dispose of the appeal in the next three months; and the guilty punished in the fourth quarter.
There should be only one appeal in rape cases. In the Delhi gang-rape case, the police were able to file the chargesheet in a special court within three weeks. As I write this, I have on my table the newspapers carrying reports about capital punishment awarded to the man who raped and killed 15-year-old Arya on March 6, 2012, in her own house in Kerala. I am really impressed by the quick delivery of justice by Thiruvananthapuram district special judge B. Sudheendra Kumar. However, it is now four years since a Catholic nun was raped in Odisha's Kandhamal district. I still remember that dingy area, under the staircase, where the heinous act was committed. When I visited the spot, all I could do was pray for justice!
In rape cases, "in-camera" trial is now the norm. It should be made mandatory and no crowding of the court should be allowed. No questions about the character of the girl should be allowed, for even a sex worker needs to be protected from rape. Only one defence lawyer -- not a battery of them -- should be allowed in the court to prevent the victim from being intimidated. Judges should be sensitized about women's rights and their needs for privacy.
A rapist is a shameless character. He won't be shamed by arrest and imprisonment. He should, therefore, be made to pay for his shameful conduct. I suggest that any person convicted of rape should be forced to share his property with the girl whom he has raped. His property should be divided equally among his children and the raped person. If, for instance, he has 10 acres of land and two children and a wife, the victim should get 2.5 acres of land as her share. Provision should be made to ensure that her share is given immediately after the conviction.
If the rapist is an employee of a company or government, the victim should also have a claim on his provident fund/gratuity and it should be settled immediately after the conviction. Given the attachment Indians have for property, such a provision will be a great deterrent against forcibly laying hands or any other organ on a woman. I am personally against castration as a punishment but I have a suggestion in this regard.
Though plea bargain -- an agreement in a criminal case between the prosecutor and the defendant whereby the defendant agrees to plead guilty to a particular charge in return for some concession from the prosecutor – is generally not allowed in Indian courts, a convicted rapist who has completed half his jail term should be released if he willingly undergoes medically certified chemical castration. This is allowed in some states in the US.
Since time is of the essence in rape cases and people are still upset over the Delhi incident, I can only hope that the government will incorporate all your suggestions in a new anti-rape Bill. We often claim that women are worshipped in the country by invoking the names of goddesses like Lakshmi and Durga. All that the Indian girl expects is gender equality and the right to live a dignified life, free from sexual harassment. They all look forward to reading your report and seeing how the government responds to it.
As I conclude, let me wish you and your colleagues a very happy and prosperous New Year. May you three be God's instrument to erase the gang-rape blot on the country's image and to usher in a new system, which will ensure that a rapist is punished certainly, quickly and severely and every girl in India can truly feel, to quote Tagore, that her "mind is without fear and the head is held high".
Yours sincerely
The writer can be reached at ajphilip@gmail.com
I personally feel that due credence and respect should be given to these women who sacrifice everything to act as a safety valve to the human lust and emotions. They should be licensed, given proper protection against exploitation, given free medical support, declared as a legal profession free of tax liabilities, their buildings be maintained at the cost of the exchequer and whatever other facility that the public feels must be given to them.
This is one of the means to reduce criminal exploitation and trafficking amongst humans.
My personal view point.
Col Kulbir Singh, Veteran
Good point.
What happens after a few rounds of emails? Finally all go into oblivion?
Have a method of consolidating the stream of mail on a topic, closing discussion after say a week or two, and print and send to Public Grievances Secy of Govt of India, is my suggestion.
Rajaram Bojji FIE., FNAE
+91 9885700007
On Jan 5, 2013 12:56 AM, "sangeeta tomar" <
tomarsangeeta27@gmail.com> wrote:
THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956
Definitions.—In this Act.
(a) "brothel" includes any house, room, conveyance or place, or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitute.
(j) "Trafficking police officer" means a police officer appointed by the Central Government under subsection (4) of Section 13.
3. Punishment for keeping a brothel or allowing premises to be used as a brothel.— (1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than two years and which may extend to three years and also with fine which may extend to ten thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which shall not be less than three years and which may extend to seven years and shall also be liable to fine which may extend to two lakh rupees
(2) a any person who,—
(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or
(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.
WHY I SHARED THIS LAW POSITION WITH YOU ALL-----POINT I WISH TO MAKE
1.GB ROADS are places where women/young girls are tortured—CAN ANYONE DENY---NO
2. IS THERE NO LAW------NO---------Law is in place and clear --- any knowingly allows any other person to use such premises as brothel –imprisonment two years
3. How many of the owners are accused, tried and punished under this section 2 of this Act till date.
4. Has Govt appointed trafficking police officer in these area-----if YES---- then what are they doing?
5. IF THE LAW IS IMPLIMENTED CAN AREAS LIKE GB ROAD EXIST---NO
6.ORGANISATIONS AS HUGE AS CRY COLLECT MONEY FROM PUBLIC FOR THESE GIRLS TO REHABILITATE THEM ------------WILL THAT MONEY BE REQUIRED IF THERE ARE NO SUCH AREAS.
7.DO WE NEED MONEY TO CLOSE THESE AREAS-------NO
THEN WHY DONT EVERYONE ASK GOVT (WHO EVER IS IN POWER) TO IMPLIMENT THIS LAW
OR
SCRAP THIS LAW AND MAKE PROSTITUTIONS LEGAL SO THAT THESE POOR GIRLS AT LEAST HAVE SOME SECURITY IN LIFE AND HAVE LEGAL RIGHTS.
NOW YOU ALL KNOW THE LEGAL POSITION------------------ITS TIME FOR YOU AND NGO'S LIKE CRY TO START THINKING AND ACT --------------HOW?
1. FILE FIR AGAINST THESE OWNERS!
2. STOP FUNDING AND DONATING TO BIG NGO'S LIKE CRY FOR REHBILITATING THESE GIRLS BECAUSE THIS KEEPS THE MONEY IN CIRCULATION FOR WRONG PURPOSES.INFACT CRY NOG SEND YOUNG GIRLS DOOR TO DOOR TO COLLECT MONEY FOR THE NGO EXPOSING THESE GIRLS TO DANGER OF BEING RAPED.
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