Verma Committee Report: A Two-Part Note

The Criminal Law Amendments
suggested by the Justice Verma Committee are synopsised in a two-part guest post by Mrinal Satish and Shwetasree Majumder, who worked with the Committee. Mrinal is
Associate Professor at National Law University, Delhi and
Shwetasree is an IP attorney and founder of the law firm, Fidus Law
Chambers.
Introduction
The Justice Verma Committee was set up by the Government of India
after the gruesome gang rape incident that occurred in Delhi on December 16,
2012. The Committee was asked to review existing laws and suggest amendments to
criminal law to effectively deal with instances of sexual violence. The
Committee, however, did not view its mandate as only drafting new laws. It
placed its mandate within the framework of the Constitution. The Committee grounded
its report in the State’s obligation to secure the fundamental rights of its
citizens, which includes the right of every person to assert one’s individual
autonomy. In the context of women, if they are denied autonomy, even by actors
other than State, the duty of the State does not diminish only on that ground.
The failure to secure rights of women results in the State denying the right to
equality and dignity that women are guaranteed under the Constitution. [See
pages 65-67 of the Report]. The Committee’s report, including the new offences
that have been created, and modifications suggested of the existing ones need
to be viewed within this Constitutional framework.
The Justice Verma committee has made wide ranging recommendations
for changes to various laws that impact upon women’s right to equality and
right to dignity. In this two-part synopsis, we focus on amendments made to the
criminal law framework relating to sexual violence. In Part I of the synopsis,
we discuss the set of new offences recommended by the Committee, including stalking
and voyeurism. We also discuss the modifications suggested to Section 354 of
the Indian Penal Code, which defines the offence of “outraging the modesty of a
woman.” The offence has been re-christened as “sexual assault” and the
terminology has been changed from archaic concepts of “modesty” to recognition
of sexual autonomy, dignity and freedom. We also discuss amendments suggested to
the Code of Criminal Procedure, 1973 (Cr.P.C.) and the Indian Evidence Act,
1872 (IEA). In Part II of the synopsis, we discuss amendments suggested to rape
laws, the recommendation to introduce a new offence of trafficking, as also
issues relating to medical examination of rape survivors. These synopses
provide a summary and brief explanation of the changes recommended, and the
reasons for these changes. They do not contain an analysis or a critique of the
provisions.
Amendments to the IPC and the introduction of new
offences
A.   
Acid attacks:
The Committee highlights the heinous and yet commonplace nature of
acid attacks in several Asian and African countries including India (page 146).
Although the Committee notes that traditionally the offence is dealt with under
Section 326 of the IPC, it observes that ”what happens when there is permanent
physical and psychological damage to a victim, is a critical question and law
makers have to be aware that offences are not simply based on the principle of
what might be called offence against the body, i.e., damage of the body, but
they must take into account the consequences on the right to live with dignity
which survives the crime” (page 147).  
The Committee notes that the
Criminal Law (Amendment) Bill, 2012 includes the offence of voluntarily causing
grievous hurt, through use of acid. Under the proposed Section 326A of the
Amendment Bill, if a person causes permanent or partial damage to the body of
another person by throwing acid on, or administering acid to that person, with
the intention of causing injury, or with the knowledge that injury shall be
caused, that person shall be guilt of the offence defined in Section 326A. The
Amendment Bill has proposed a minimum punishment of ten years, and a maximum of
life. It has also proposed that a fine of a maximum of rupees ten lakhs may be
imposed, which shall be given to the victim.
The Committee makes some key
modification to this provision. It recommends that the offence not be confined
to only throwing acid on a person. It suggests that if a person causes permanent
or partial damage to the body of another person, by using means other than
throwing acid, such person and acts, should also be brought within the purview
of the section. The Committee also recommends that the victim should receive
Central and State government assistance through a compensation fund (See Para 8 page 148). It further recommends that instead of a fine,
the convicted person be liable to pay compensation to the victim, which should
be sufficient to at least cover the medical expenses of the victim.
The
first explanation to the section takes the offence beyond the specific sphere
of acid attacks to other violent hate crimes against the body of a woman, which
maim or permanently damage or disfigure her, such as forced circumcision of a
woman or female genital mutilation. The second explanation pre-empts an
argument against liability if the victim ‘reverses’ the visible effects of the
attack, through medical treatment. This formulation captures the Committee’s
recognition that the offence is not only about physical damage, but also about
right of a person to live with dignity.
The
Criminal Law (Amendment) Bill, 2012 proposes the addition of Section 326B which
punishes the voluntary throwing or attempt to throw acid on a person. The
offence is punishable with imprisonment for a minimum period of five years,
which may extend to seven. Along the lines of its recommendations for modifying
Section 326A, the Committee recommends the broadening of Section 326B to
include any other means to achieve the purpose of permanently or partially
damaging a person’s body.
B.     Sexual Assault
Under
the current Section 354 of the Indian Penal Code, a person who “assaults or uses
criminal force to any woman,
intending to outrage or knowing it to be likely that he will thereby outrage her modesty” is punished with
imprisonment of upto two years, or fine, or both. The focus of the provision,
rather unfortunately is on “outraging of the modesty” of a woman and invariably
the defence against the application of such a provision has centred around what
constitutes a woman’s modesty, whether the woman in question was of such a
character to claim that her modesty was outraged, whether young girls below the
age of puberty have ‘modesty’ etc.  Further,
under the current formulation the offender can argue that he did intention to
“outrage the modesty” of the woman, or that he did not know that his actions
would result in the “modesty of the woman” being outraged. Hence, the need for
change was palpable, so as to change the focus of the crime from notions of
“modesty” to violation of sexual autonomy. The recasting of the provision
therefore needed to be wider in scope, cover a range of offences (and
consequently provide higher degrees of punishment) and be a gender neutral
provision that criminalised unwelcome sexual acts of varying degrees of
severity. 
The
Committee has recast the provision in its entirety to criminalise all acts of
non-penetrative sexual violence under the umbrella term of ‘sexual assault.’ This
ranges from the intentional contact
of a sexual nature with another person without their consent, to using words, acts or gestures
towards or in the presence of another person to create an unwelcome threat of a
sexual nature or which result in an unwelcome advance. In its recommended avatar the provision
shifts focus from the “modesty” of the woman being the lens to view the offence
to an assessment of when sexual assault can be said to have occurred. The Committee also recommends the
repeal of Section 509 of the IPC, since the acts criminalized under that
section are covered in the recast Section 354.
Drawing from the Canadian
approach, the Committee explains in the context of the recast Section 354 that while
the offence of sexual
assault should
include all forms of non-consensual non-penetrative touching of a sexual
nature, the ‘sexual nature’ of an act would be established if: “viewed in the light
of all the circumstances…the sexual or carnal context of the assault [is] visible to a reasonable observer.” The Committee observes that the courts will
examine factors such as the part of the body touched, the nature of the
contact, the situation in which it occurred, the words and gestures
accompanying the act, threats, intent of the accused and any other relevant
circumstances but warns that it should not be a prerequisite that the assault
be for sexual gratification. The motive of the accused is ‘simply one of many
factors to be considered.”(page 112).
The Committee also recommends
change in the sentencing framework. For an act that involves physical contact,
a maximum penalty of imprisonment for five years has been recommended. For acts
that do not involve physical contact, a maximum sentence of one year has been
suggested.
C.    
Public Disrobing of a woman:
The
Committee takes note of various instances across the country of humiliating a
woman by publicly disrobing her. Recognizing this as a crime usually done with
the intention of publicly humiliating a woman, the Committee proposes a
separate provision to deal with this act. It recommends enactment of Section
354A to deal with this offence. A minimum sentence of three years, and a
maximum sentence of seven years is recommended for this new offence.
D.   
Voyeurism
The Committee recommends the introduction of a new offence of
voyeurism. Although the Information Technology Act covers invasion of privacy
using electronic devices, the IPC does not contain a provision that defines and
punishes voyeuristic acts. This new section achieves that purpose. The
provision covers two types of instances (1) where the perpetrator  watches the woman secretly, and (2) where the
woman  might have consented to the
perpetrator watching her (for instance, when the woman might be in a
relationship with the  perpetrator) but
not of any third party watching her at the perpetrator’s behest. Watching a
woman in these circumstances amounts to voyeurism if she was engaged in a ‘private act’, which, in
the first explanation to the provision is defined as “an act carried out in a place which, in the circumstances, would
reasonably be expected to provide privacy, and where the victim’s genitals,
buttocks or breasts are exposed or covered only in underwear; or the victim is
using a lavatory; or the person is doing a sexual act that is not of a kind ordinarily
done in public.”
The second explanation covers
instances where a woman may have consented to her private images being captured
by the perpetrator (such as, once again in instances of a relationship between
them) but not to such pictures being disseminated by him to third parties. The recommended
punishment for the offence of voyeurism is of imprisonment
of one to three years and with fine, and in the event of a second or subsequent
conviction with imprisonment for a minimum of three years which may extend to
seven years and also with fine.
E.    
Stalking
The Committee recommends the
introduction of a new offence of stalking. “[T]he Committee was surprised to find out that offences such as stalking,
voyeurism, ‘eve-teasing’etc. are perceived as ‘minor’ offences, even though
they are capable of depriving not only a girl child but frail children of their
right to education and their freedom of expression and movement.”
Therefore,
the Committee takes the view that “it is
not sufficient for the State to legislate and establish machinery of
prosecution, but conscious and well thought out attempts will have to be made
to ensure the culture of mutual respect is fostered in India’s children.
Preventive measures for the initial minor aberrations are necessary to check
their escalation into major sexual aberrations.”
(Page 215)
The offence of stalking (which
is gender neutral) is committed in any one of three situations listed below:
Situation 1: Where a person
(i)            
follows another
and
(ii)          
contacts, or
attempts to contact them
(iii)         
in order to
foster personal interaction
(iv)         
repeatedly
(v)          
despite a clear
indication of disinterest, or
Situation 2: Where a person
(i)             
monitors the
use by another person of the internet, email or any other form of electronic
communication, or
Situation 3: Where a person
(i)            
watches or
spies on another person,
(ii)          
in a manner
that results in a fear of violence or serious alarm or distress in the mind of the
other person, or
(iii)         
in a manner
that interferes with the mental peace of the other person
The provision includes three
exceptions, where the action will not amount to stalking:
(a) where the course of
conduct is pursued for the purpose of preventing or detecting crime and the
person accused of stalking has been entrusted with the responsibility of prevention
and detection of crime by the state; or,
(b) where the course of
conduct  is pursued under any enactment
or rule of law, or to comply with any condition or requirement imposed by any
person under any enactment; or,
(c) where, in the particular
circumstances the pursuit of the course of conduct was reasonable.
The punishment recommended for
the offence of stalking is imprisonment
of either description for a term which shall not be less than one year but
which may extend to three years along with a fine.
Amendments to
the Code of Criminal Procedure
The Criminal Law (Amendment) Bill, 2012 suggests amendments to five
sections of the Criminal Procedure Code, 1973 (Cr.P.C). In light of its mandate
and the changes suggested to the I.P.C. and other substantive laws, the
Committee has suggested changes to various other sections of the Cr.P.C. We
have summarized these changes and provided a brief commentary on the impact
they will have, if enacted.
A.   
Section 39, Cr.P.C.
Section 39 imposes a duty on the public to report offences if they
become aware of commission or the intention of a person/s to commit the
offences listed in sub-section (1) of that section. If a person intentionally
omits to inform the police or the nearest magistrate, such omission is
punishable under Sections 176 and 202 of the Indian Penal Code, 1860 (I.P.C.),
both of which provide a term of imprisonment which may extend to six months.
Currently, Section 39(1) of the Cr.P.C. does not include sexual offences. The
Committee recommends that Sections 326A, 354, 354A, 354B, 354C, 376(1), 376(2),
376A, 376B(2), 376C, 376D and 376F be added to the list of offences in Section
39(1), Cr.P.C.
This proposed change in the law recognizes the under-reporting of
rape cases, because of survivors being discouraged by individuals who become
aware of the incident. If the law is amended as suggested, a person who becomes
aware of an incident of sexual abuse will be legally bound to report the crime.
B.    
Section 40A, Cr.P.C.
Section 40 of the Cr.P.C. is along the lines of Section 39. It casts
a duty on officer employed in connection to the affairs of a village and
residents of a village to report the commission of offences listed in Section
40(1). An officer employed in connection to the affairs of the village includes
the members of the village panchayat, and others in similar leadership roles.
The Committee recommends that a new section, Section 40A be added to the
Cr.P.C. This section would obligate “every officer employed in connection with
the affairs of a village, and every person who is part of a village panchayat” to report without delay, the
commission (or the intention to commit) offences listed in that section. The
offences listed are Sections 326A, 326B, 354, 354B, 354C, 376(1), 376(2),
376(3), 376A, 376B(1), 376B(2), 376C and 376D of the IPC.
This suggested amendment recognizes the fact that in rural areas,
the sarpanch or a member of the
village panchayat is often informed
about the commission of a sexual offence. Panchayats often engage in getting
the parties to compromise, and discourage the survivor and her family from
reporting the incident to the police. If this suggestion of the Committee is
accepted, the members of the panchayat and
any other person in a leadership role in a village will be legally bound to
report the offence to the police. 
C.    
Section 54A, Cr.P.C.
The Committee recommends amending Section 54A of the Cr.P.C., which
deals with “identification parades.” The purpose of an identification parade is
for a person who has information about the crime and/or the offender to
identify a person who is suspected of having committed the crime. In an
identification parade the person identifying generally points out the person to
the police officer conducting the parade. Recognizing that the current process
might not be disabled-friendly, the Committee has proposed that in cases where
the person identifying is physically or mentally challenged, a different
procedure be used. Instead of a police officer, such parade shall be conducted
by a judicial magistrate, who shall devise a method of identification, which
the physically or mentally challenged person is comfortable with. The Committee
has also suggested that the entire process be videographed.
D.   
Section 154, Cr.P.C.
The Criminal Law (Amendment) Bill, 2012 proposes amendments to
Section 154(1), Cr.P.C. which deals with filing of First Information Reports.
The amendment proposed by the Bill is that in cases involving Sections 354,
375, 376, 376A, 376B and 509 of the IPC, FIRs should be recorded, as far as
possible, by a woman police officer.
The Committee makes four additional suggestions. First, it adds all sections
in the IPC dealing with sexual offences against women (including those proposed
by the Committee) to the list of offences already suggested by the Amendment
Bill. Second, it suggests that if the rape survivor is a woman, then she should
be provided legal assistance, as well the assistance of a healthcare worked
and/or a women’s organization. Third, in the event that the survivor (male or
female) is temporarily or permanently physically challenged, the police officer
is required to record the FIR at a place convenient to the survivor, in the presence
of a special educator or an interpreter. The Committee also recommends that the
process be videographed. The final recommendation is that after recording the
survivor’s statement, the police should get the survivor’s statement recorded
by a judicial magistrate.
Filing of the FIR is a major hurdle that a rape survivor faces. The
atmosphere of a police station is not friendly to reporting a sexual crime. It
has been alleged that police officers are not sensitive while recording FIRs
for rape. Recognizing that women might be more comfortable in reporting the
offence to a female police officers, previous law reform initiatives, including
the Criminal Law (Amendment) Bill, 2012, have suggested that FIRs in sexual
offences be recorded by women police officers. If the Committee’s
recommendations of providing legal assistance to a rape survivor, as well as
the assistance of a healthcare worker and/or a women’s organization is
accepted, the process will be less intimidating than it currently is. This
would result in rape survivors being provided better access to the legal
system.
E.    
Section 160, Cr.P.C.
Section 160 of the Cr.P.C. deals with the power of the police
officer to summon a person acquainted with the facts of the case. This is
generally done for recording of the statement of the witness, and the person
may be called to a police station. The existing provision, however, provides
that no woman or a male under the age of fifteen shall be questioned, except at
their residence. The Criminal Law Amendment Bill proposes to extend the age for
men, providing that a man under the age of fifteen or over the age of sixty
five shall be questioned at his residence. The Committee recommends that a
physically or mentally challenged person also be questioned at his/her
residence.
F.     Section 164, Cr.P.C.
Section 164 of the Cr.P.C. deals with the recording of confessions
and statements by Magistrates. The Committee recommends that as soon as the
commission of a sexual offence is brought to the attention of the police, the police
shall arrange to have the survivor’s statement recorded by a Magistrate. It
further recommends that in the case of a mentally or physically challenged
person, such statement, the recording of which shall be videographed, shall be
taken with the assistance of an interpreter or a special educator. It also
recommends that in the case of mentally or physically challenged persons, this
statement before the Magistrate shall be considered as their
examination-in-chief. This implies that the person will not have to re-assert
the statement at trial, but only be available for cross-examination.
A major reason for acquittals in rape cases is the survivor turning
hostile. In a large number of cases, the survivor retracts from her prior
statement to the police, due to societal and other pressures. The consequence
of getting a statement recorded by a magistrate is that the survivor cannot
claim that he/she did not make such statement, or dispute its contents. This
would ensure that the person does not retract from his/her statement because of
extraneous reasons. On the other hand, if she does retract, he/she will be
liable to prosecution for making false statement under oath.
G.   
Section 197, Cr.P.C.
Section 197(1) of the Cr.P.C bars a court from taking cognizance of
an offence, if it is committed by a judge, magistrate or a public servant,
while acting or purporting to act in the discharge of his official duties,
unless sanction is granted by the appropriate government. The Committee
recommends that the section be amended to lift the bar on taking cognizance in
sexual offences, as well as the offence of trafficking. Under the current
framework, if a public servant commits an offence, including a sexual offence,
the government has to grant sanction for prosecution. Delay in granting
sanction, or cases where sanction is not granted leads to impunity in custodial
rape cases. The amendment recognizes that committing an act of sexual violence
cannot be a part of person’s official duties. Hence, the Committee recommends
that sanction be required in sexual offence cases be removed.
H.   
Section 198B, Cr.P.C.
The Committee recommends adding Section 198B to the Cr.P.C, by
virtue of which a court is barred from taking cognizance of a report of marital
rape, unless such report is made by the wife against her husband. This ensures that
a third person does not interfere in a marital relationship, by filing a report
of marital rape.
I.     
Section 327, Cr.P.C.
Section 327(1) of the Cr.P.C. states that all trials shall be open
to the public. However, sub-section (2) states that trials of cases under
Sections 376, 376A-D shall be conducted in
camera
. In suggesting modification of the Criminal Law (Amendment) Bill,
the Committee proposes that trials for all the new sexual offences that it has
suggested also be in camera. The Committee however recommends that unless there
are compelling reasons, only the examination in chief and cross-examination be
in camera. The rest of the proceedings should be open to the public in order to
ensure that there is a check on misogynistic and prejudicial practices in court
proceedings. The Committee further recommends that the survivor be provided
with the assistance of a person from a women’s organization through the trial.
J.     
Section 357, Cr.P.C.
One of the amendments that the Committee suggests in the IPC is that,
if convicted, the offender should be liable to pay monetary compensation to the
victim. Consequently, amendments have been suggested to Section 357, Cr.P.C.
which empowers courts to award compensation. The proposed amendment
operationalizes the amendment to the IPC by suggesting the requisite changes to
the Cr.P.C.
K.    
Amendments to the First Schedule of the Cr.P.C.
In light of the seriousness of sexual offences, the Committee
recommends that all the offences made punishable by the Amendment Bill be
cognizable and non-bailable.
Amendments to the Indian Evidence Act (IEA)
The Criminal Law (Amendment) Bill suggests amendments to Sections
53A, 114A and 146 of the Cr.P.C. The Committee suggests further modifications
to these proposed amendments, as well as an amendment to Section 119 of the
Evidence Act.
A.             Amendments to Sections 53A and 146, IEA
Sections 53A and 146 of the IEA deal with the issue of sexual
history of the rape survivor. The Amendment Bill has proposes that in sexual
offences, where consent is an issue, the character or past sexual history of
the survivor shall not be relevant in deciding on the issue of consent. The
Committee recommends that past sexual history should not be relevant in all
sexual offences. It further recommends that past sexual history be considered
irrelevant not only in determination of the question of consent, but during the
determination of any other fact during the trial process.
The proviso to Section 146 bars the rape survivor being asked
questions about her sexual history during cross-examination. The Amendment Bill
makes the section gender neutral and adds a few more offences to the existing
list. The Committee recommends that the bar on asking a rape survivor questions
about her sexual history should extend to all sexual offences. In sum, the past
sexual history of the survivor will not be a relevant fact in a prosecution for
any sexual offence.
B.              Amendment to Section 114A, IEA
Section 114A of the IEA states that in a prosecution for rape under
certain clauses of Section 376(2) of the Indian Penal Code, if sexual
intercourse is proved by the prosecution, and the issue is one of consent, and
the woman testifies that she did not consent, the Court shall presume that the
lack of consent. In light of the new offences recommended by the Committee, it
suggests that the presumption apply to all the clauses of Section 376(2), as
also to the offence of gang rape defined by the newly proposed Section
376C. 
C.              Amendment to Section 119
The final amendment suggested to the IEA is with respect to Section
119. Section 119 referred to people with speech disabilities as “dumb
witnesses.” The Committee recommends that an amendment be made to the section
and that “dumb” be replaced by “persons who are unable to communicate
verbally.” It also recommends that in recording the evidence of such persons,
the Court shall take the assistance of a special educator or interpreter, as
required, and that the process be videographed.

The authors
have prepared this synopsis in their individual capacities. They do not purport
to represent the views, or speak for, the Justice Verma Committee. This
synopsis has also been published on Bar & Bench.

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