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#India – Changes in Criminal Law vs Justice Verma Recommendations #Vaw

Changes to law will clearly define unwelcome sexual acts

TNN | Feb 2, 2013, 04.25 AM IST

: 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 ’s view that provisions dealing with 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 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 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.

JUSTICE VERMA COMMITTEE RECOMMENDATIONS  INDIAN PENAL CODE (1860) 
AcceptedSection 354: Sexual Assault and Punishment for Sexual Assault – Entirely accepted
Accepted in parts | Section 100:
Only Right to Private Defence— Inclusion of an acid attack u/s 326A was accepted and the rest proposed was already existing in the IPC
Not Accepted | Section 376A: 
Sexual abuse by husband upon his wife during separation—Verma Committee wanted to delete it. Was retained by MHA as marital rape was not agreed to.
Accepted | Section 354A: Assault or use of criminal force on woman with intent to disrobe her – Entirely Accepted
Accepted in parts | Section 166A:
Public Servant disobeying direction under law – Directions relating to crimes against women proposed to be made punishable upto only one year against the recommended five years as proposed by Justice Verma Committee. Rest accepted
Not Accepted | Section 376B (1): 
Rape of an Underage Person – Not accepted as the provision is in conflict with the PCSOA, 2012
Accepted | Section 354 B:
Voyeurism – Entirely accepted
Accepted in parts | Section 326A:
Voluntarily causing grievous hurt through use of acid etc. – Female circumcision proposed was not accepted. – Compensation adequate to meet at least the medical expenses incurred by the victim was not accepted. Rest was accepted
Not Accepted | Section 376 B(2) 
Punishment for causing death or a persistent vegetative state in the course of committing rape of an underage person – Death penalty was not recommended
Accepted | Section 354 C (1):
Stalking – Entirely accepted
Accepted in parts | Section 326B:
Voluntarily throwing or attempting to throw acid etc. – Compensation adequate to meet at least the medical expenses incurred by the victim was not accepted. Rest was accepted
Not Accepted | Section 376F: 
Offence of breach of Command Responsibility – Fixes vicarious criminal responsibility on the leader of a force for acts of subordinates. Not accepted
Accepted | Section 354C (2)
Punishment for stalking – Definition entirely accepted
Accepted in parts | Section 375 Rape – Neutrality of the act was not recommended which was not accepted by MHA. The Bill criminalizes the sexual activities between 16 and 18 years which the Verma Committee did not agree. Verma Committee criminalizes marital non-consensual sexual intercourse which is not accepted. Rest of the recommendations were accepted
Accepted | Section 370 Trafficking of a Person – Entirely accepted
Accepted in parts | Section 376 (1) Punishment for Rape – Payment of compensation to the victim was dropped. Rest of the recommendation was accepted
Accepted | Section 370 A Employing a Trafficked Person – Punishment entirely accepted
Accepted in parts | Section 376 (2)
Aggravated Rape – Payment of compensation to the victim was dropped. Rest of the recommendations were accepted
Accepted | Section 376A
(re-numbered as 376B) Sexual intercourse by a Person in Authority – Accepted in full
Accepted in parts | Section 376 (3)
Punishment for causing death or a persistent vegetative state in the course of committing rape – Death penalty was preferred by MHA. Rest of the recommendations were accepted
Accepted | Section 376C Gangrape – Accepted entirely
Accepted in parts | Section 376D
Gang rape causing death or a persistent vegetative state shall be added: Death penalty was preferred by MHA. Rest of the recommendations were accepted
Accepted | Section 376E
Punishment for Repeat Offenders – Accepted entirely
Accepted | Section 509: Repeal accepted as offences covered elsewhere
CRIMINAL PROCEDURE CODE 1973
Accepted | Section 54A: Proviso to Section 54A regarding identification of arrestee by a disabled person – Accepted entirely
Accepted in parts | Proviso to Section 154 Registration of an Offence – Provision to record evidence by police officer at the residence of the person reporting the offence. Mandatory videographing was not agreed to and converted to optional
Not Accepted | Section 39(1) Clause (vb) – Compel communication of information of offence relating to crimes against women to the nearest Magistrate – Not accepted as it is liable to be misused
Accepted | Section 160: No male below 18 and above 65 years and woman or physically disabled shall be required to attend a police station
Accepted in parts | Section 164 (5) (a) and (6)(b) Recording statement by a magistrate – Special assistance for mentally or physically disabled persons to be given by magistrate. Statement of mentally or physically disabled person to be considered sufficient for examination-in-chief and cross examination. However, mandatory videography not agreed to and changed to optional
Not Accepted | Section 40A: 
Intimation by the panchayat member the communication of information of offence relating to crimes against women to the nearest magistrate—Not accepted as it is liable to be misused
Accepted | Section 198B:
Cognizance of an offence u/s 376(1) when persons are in marital relationship
Not Accepted | Section 197(1)
Sanction for prosecution – No
sanction would be required for prosecution of judge or magistrate or public servant if accused of crimes against women. Not agreed to avoid false complaints
Accepted | Proviso to Section 273:
Recording of evidence of a victim below 18 years – Victim will not be confronted by the accused. Accepted in full
Not Accepted | Section 357(4) 
Compensation to victim – Payment of compensation of an amount adequate to meet atleast the medical expenses incurred by the victim. This is not acceptable as the compensation would be very low. The Bill has a better provision
Accepted | Section 327:
Substitution of new offences defined for rape (376A, 376B, 376C, 376D) – Technical formality
THE INDIAN EVIDENCE ACT, 1872
Accepted | Section 53A: Evidence of character of previous sexual experience not relevant in certain cases – Fully accepted
Accepted | Section 114A:
Presumption as to the absence of consent in certain prosecution for sexual assault – Fully accepted
Accepted | Section 119: Dumb witness substituted by ‘persons who are unable to communicate verbally – Fully accepted
Accepted | Proviso in Section 146:
Question regarding the moral character will not be put to the victim during cross examination – Fully accepted
ARMED FORCES (SPECIAL POWERS) ACT, 1958
Not AcceptedProviso to Section 6: No sanction would be required if the armed force personnel is accused of a crime against woman

 

 

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