(This note was submitted on 30-12-2012 to Justice J. S. Verma committee which was set up after the Nirbhaya incident of December 2012)
The Law Commission in its 172nd report, on Review of Rape Laws, submitted to the Government in March, 2000 recommended changes in the Indian Penal Code, the Code of Criminal Procedure and in the Evidence Act. The report is available on-line at: http://www.lawcommissionofindia.nic.in/rapelaws.htm. It appears that only a few recommendations given in the Law Commission report have been implemented so far. The reasons for not implementing the other recommendations is not known. It would be desirable that the Government places in the public domain full facts on the action taken on the report of the Law Commission. It would facilitate approaching the issue in a well-informed manner.
Suggestions
(1) A comprehensive law (complete code) should be prepared to handle not only rape cases, but also all types of sexual assault cases. This law should be the special law on the subject, which would override all other laws, in case of repugnancy.
(2) Duties of victims shall be laid down in very clear terms, and the public should be adequately sensitized on taking steps to protect evidence. Some of the points requiring attention by victims are given below.
- The victim, before reporting the complaint to the competent authority, should not wash or change his/ her clothing. However, if the victim wants to change his/ her clothing, he/ she should put the clothes in a plastic bag and tie it tightly shut to preserve the evidence.
- The victim should not drink anything, especially alcohol, before reporting the case.
- The place or venue, where the incident occurred, should be protected, to the extent possible, from being used till evidence is collected about the incident.
- Report, as quickly as possible, to the police and to the Sexual Assault Referral Centre either in person or over telephone directly or through next friend.
- Assist in the identification of the perpetrator(s).
(3) The investigation machinery (full team) shall go the relevant places and collect complete evidence (including forensic/ biological/ other scientific examinations) in each case within 24 hours after receiving a complaint. For this purpose, at least one dedicated Sexual Assault Referral Centre in each district shall be established. Each Centre should be staffed by doctors including women doctors, nurses, support workers and counselors.
(4) Delays in arresting culprits, collecting evidence and filing charge-sheets in competent courts shall be monitored at a very senior level to take immediate corrective steps.
(5) The Police should provide protection to the complainants, victims and other witnesses, till the case is decided.
(6) Legal assistance should be provided free of charge to the victims. A list of advocates empanelled for this purpose should be kept in the public domain.
(7) Cases of Sexual Assault shall be heard in Special Courts created by the High Courts.
(8) The prosecution should be a summary prosecution and the burden of proof after receiving the charge-sheet shall lie with the offender. The hearing shall be day-to-day hearing without any break and shall be completed within three months. Cases pending for more than three months shall be reviewed by the High Courts for passing directions on case to case basis.
(9) The offender or his legal representative shall not be entitled to cross-examine the victim. However, the courts may allow questions, purely for the purpose of seeking clarifications on the evidence collected, but shall not allow any questions on the past sexual history of the victim.
(10) Corroboration as a condition for judicial reliance on the testimony of the victim should not be a requirement of law but a guidance of prudence under given circumstances.
(11) Free medical assistance and interim compensation to the victims shall be arranged by the Government.
(12) Government shall also provide compensation for victims to rehabilitate themselves, after the case is decided.
(13) There is a need to rationalize the penalties to be imposed in sexual assault cases. The penalties should be very stringent and act as deterrents. The following suggestions merit consideration.
- Offences of sexual assault of aggravated nature shall be punished with death, or imprisonment for life, and shall be liable to fine. The property of the offender shall automatically devolve to the Government. The offender shall be disqualified of all his/ her educational and other qualifications. The fine shall not be chargeable from the property of the offender and shall be earned by him/ her by doing manual work while in jail. All property transactions made by the offender on or after the date of the offence shall be void in law.
- Offences of sexual assault not of aggravated nature shall be punished with imprisonment of either description for a term which shall not be less than fourteen years and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than fourteen years.
- Negligence of duties by the Police and investigating authorities shall be punished with imprisonment and fine.
- Abetment of offences of sexual assault shall also be punished with imprisonment and fine.
- Suppression of material facts and false complaints shall also be punished with imprisonment and fine.
Other relevant suggestions
(14) Consumption of intoxicants is directly or indirectly the root cause for many offences. The Government should consider banning manufacturing, distribution, sale and consumption of alcohol and other intoxicants, except for medicinal use.
Ranganadham 