|A girl perched on a pole during a protest for the gang rape victim at Vijay Chowk in New Delhi last December. PTI file picture
New Delhi, Jan. 23: The Justice J.S. Verma committee has desisted from recommending the death penalty as well as chemical castration for rapists and reduction of the age for juvenile immunity. But it has said marital rape should not be exempt from punishment.
The committee was set up on December 23 in the wake of the gang rape and fatal assault of a paramedical student in Delhi. The other members of the three-member committee are former Himachal Pradesh chief justice Leila Seth and former solicitor-general Gopal Subramaniam.
In a 631-page report submitted to the government today, the committee recommended imprisonment for the rapist’s remaining life and inclusion of several sexual crimes into the Indian Penal Code (IPC).
Protesters were demanding the death penalty for rapists and reduction of a juvenile delinquent’s age from 18 to 16. One of the six accused in the Delhi case had claimed to be a juvenile.
“There were overwhelming recommendations or suggestions against it (the death penalty)…. We have said that life sentence means whole of the remaining life in the gravest cases,” Justice Verma told a media conference that lasted over three hours.
“Particularly, we found that the women’s groups unanimously were against death penalty and that, we thought, was a very strong reason,” the former Chief Justice of India said, drawing applause from women activists at Vigyan Bhavan.
The committee’s report is a result of a synthesis of 80,000 suggestions from India and abroad. Among those who sent suggestions from abroad include Sandra Fredman, Rhodes professor of the laws of the British Commonwealth and the USA at Oxford, and Diane L. Rosenfeld, lecturer on law at Harvard Law School.
Full life term
The panel recommended a new section, Section 376(3), in IPC to step up punishment for rapists causing death or a “persistent vegetative state”— a reference that recalled the plight of Aruna Shanbag, the Mumbai-based nurse.
The committee wants provision saying the punishment will not be less than 20 years but also may be for the rest of that person’s life incorporated into the Criminal Law Amendment Bill, 2012, introduced in Parliament on December 4.
The committee rejected the suggestion of chemical castration of rapists, saying such a punishment would violate human rights and that mutilation of the body is not permitted under the Constitution.
“We note that it would be unconstitutional and inconsistent with basic human rights treaties for the state to expose any citizen without their consent to potentially dangerous medical side effects,” the panel said.
“We are further of the opinion that chemical castration fails to treat the social foundations of rape which is about power and sexually deviant behaviour. We, therefore, hold that mandatory chemical castration as a punishment contradicts human rights standards,” it added.
On marital rape, Justice Seth said the exemption stems from an outdated notion of marriage in which the wife is the property of the husband. This immunity has been withdrawn in most jurisdictions (countries), the committee said.
Justice Seth quoted Lord Keith, saying marriage is in modern times a partnership among “equals” and not one in which the wife is subservient.
On removing the exemption for marital rape, the panel has suggested amending the CrPC by inserting Section 198B. It states that courts shall take cognisance of an offence of sexual assault if a complaint is filed or made by the wife against the husband.
The age ceiling for juveniles cannot be lowered to 16 because of the “pathetic condition” of juvenile homes, the committee said.
Subramaniam said a credible alternative to the failed juvenile homes was a pre-requisite to reducing the age. “There is a total collapse of the juvenile justice boards…. There has been no course correction,” he said.
The committee also looked at scientific evidence and factors like behaviour of people affected by malnutrition, conflict, absence of parental care and neurological factors. “It is on these factors that the committee took the decision.”
The committee came down heavily on khap panchayats and trafficking of children and proposed a bill of rights to prevent discrimination against women.
The panel suggested guidelines for medical examination of sexual assault survivors to prevent the victim from suffering in the process of getting justice. It has proposed guidelines divided broadly into a 17-point checklist or principles for forensic evidence collection.
It proposed changes to the criminal law amendment bill and the Representation of People’s Act, 1951.
The committee asked MPs and MLAs with heinous cases pending against them to voluntarily quit their seats as a mark of respect to Parliament, the legislature and the Constitution.
“We also suggest that, in the event cognisance has been taken by a magistrate of an offence... the candidate ought to be disqualified from participating in the electoral process,” it said.
The panel also demanded that a candidate who fails to disclose a charge or the commission of an offence should be disqualified subsequently.
Drawing ideas from the UK to South Africa and from Australia and New Zealand, the committee covered an entire gamut of laws that were, the members said, beyond the terms of reference but had a bearing on gender justice.