B L Saraf
T he GOI appointed a committee headed by Justice J S Verma, former Chief Justice of India, with two eminent jurists as its members to ” look into possible amendments of the criminal law to provide for quicker trial and enhanced punishment for the criminals committing sexual assault of extreme nature against women .” The committee was constituted in response to a nation- wide out cry of the people against failure of government to provide a safe and dignified environment for women of the country, who are exposed to sexual violence. Immediate cause was the brutal sexual assault on a young girl in Delhi, on 16th December 2012, and her consequent death. The committee submitted its report to the government well within the stipulated time; recommending certain changes in the relevant laws and prescribed measures to speed up the trial of cases relating to crimes against the women .
The Committee has, after examining the representations made by various civil society groups, individuals and perusing relevant laws in view of the international trends, made certain far reaching recommendations for redefining offences pertaining to the women. It has proposed changes in other laws also which the committee found to have a bearing on the terms of mandate . Coming to the main focus of the terms of reference, it has recommended redefining offence of ‘ rape ‘ within a large section on sexual assault , with a view to emphasise women’s right to bodily integrity and honour. However, the committee has not acceded to the demand of recommending death penalty to the rapist. While dealing with this aspect of the matter it has, possibly, taken into the consideration the international standards of human rights. Similarly, the committee rejected castration as an option. The committee has, indeed, enthused new life to the public discourse on the sexual abuses of women .
A couple of recommendations made by the committee are are bound to generate an animated debate. For instance, it has recommended amendment to Section 6 of the AFSPA , removing the requirement of prior sanction where the person is accused of sexual assault. Well, in principle there is nothing objectionable in the recommendation and in most cases it is welcome. It is highly preposterous for a public servant to claim immunity from prosecution when he is accused of sexual abuse; or for that matter of any allegation involving moral turpitude. To commit a rape can never be a part of public duty to be discharged by any official . Speaking in the context of the A FSPA, we have to understand that the armed forces are fighting in very hostile security environment , to guard the integrity of the nation.
The terrorists and the armed insurgents go to any lengths to malign the troops fighting against them and often subject them to the reckless and unfounded allegations, just to deter and demoralise them from discharging their national duty. The modern day insurgents have devised innovative ways to fight the state, not necessarily restricted to arms alone. They create various fronts and front organisations to plead their cause and speak their language ‘ peacefully’. The report has mentioned that the amendment was necessitated on the representations of Rights activists in Kashmir, North-East states, Chhattisgarh and Gujarat and others. It is no coincidence that number of motivated activists work in those areas . Not casting a least doubt on the conduct and good intentions of a large number of activists, genuinely concerned with Human Right abuses , who work for safety and dignity of the women, we have, on the other hand, number of so called activists for whom it is a lucrative business to rake up the issue and blow it out of the proportions . Some of them act as front organisations of the terrorists and the armed insurgents. They are likely to misuse the provision of law and harass the armed forces men who put their lives in the line of fire to safeguard the person and property of an ordinary citizen . Punjab is the example. Those brave policemen who brought the State back from the brink and saved the country from fragmentation were harassed no end by the so called activists that some of the gallant men had to commit suicide .
There are allegations of sexual abuse against the troops in the conflict areas of the country which are under investigation. So, undoubtedly , there is a need to reign in the recalcitrant soldiers. Particularly those who are deployed in the conflict zones. However, the morale of the troops should not be lowered down on the ‘ hypersensitivities’ of the motivated lot. Clean the arena but don’t through the baby with bath water. The best way to do it is to create conditions where applicability of the AFSPA does not arise.
The other recommendation likely to face resistance is the introduction of notion of “Command Responsibility”. It appears to have been inspired by the now forgotten Communal law proposed by Sonia Gandhi’s NAC. According to this notion a public servant in command control or supervision of the armed forces or police would be held responsible for failure to exercise control over the actions of his subordinates resulting in rape or sexual assault. How can it be practically possible for a CO to monitor the activities of each one amongst the hundreds of men under his control ; patrolling miles of rough terrain far away 24/7? This is stretching the principle of ” vicarious liability ” too far.
In the conclusion, the Committee has said that the existing laws if faithfully and sincerely implemented by a credible laws enforcement agencies, are sufficient to maintain law and order and protect safety and dignity of the people, particularly women and punish offenders who commit any crime.Though, it has underlined the necessity for improving the law keeping in view the modern times. Therefore, it comes to effective and timely implementation of the laws rather than having more of them that will ensure law and order in the society. The global experience gathered over a period of time shows that it is the fear of quick meeting out the punishment to the offender than its severity – to catch up with the accused decades after the commission of crime, which acts as an deterrent.
The Government must give a serious thought to the recommendations and act fast where ever possible . It will not be desirable to take the report as one package. It won’t work that way. Because , as said here, some of the recommendations may take very long time to fructify and some may not be possible to be accommodated. A crafty politician has set himself on the job to scuttle the recommendations, alleging that the committee has travelled beyond its mandate and, in making suggestions has gone out of the ambit of the terms of reference. The Government could incorporate the implementable recommendations in the Criminal Law Amendment Bill 2012, pending in the Parliament .
(The author is former Pr District & Sessions Judge)
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