How Leila Seth co-wrote the law that convicted the Delhi gang rape and murder criminals

An excerpt from a book by the first woman chief justice of a High Court of India, who died on Friday.

On Sunday, 23 December 2012, over a quiet lunch at home, a few friends and I were discussing the gang rape that had taken place the previous Sunday and that had triggered widespread outrage around the country...(My) friends were curious about the sort of response I thought the government could be expected to make to the demands of the protestors. My cynical reply was that it would appoint a committee or commission to look into the matter, thus postponing the decision for six months or more, by which time the momentum of the protest would be lost.

Just a few moments later, finance minister P Chidambaram, telephoned and requested me to be a member of just such a committee! A bit apprehensive, I asked him about the composition of the committee. He told me that it would be headed by Justice JS Verma and that its third member would be a senior advocate. I knew Justice Verma to be a fiercely independent and courageous judge and felt it would be a privilege to work with him. I then asked the finance minister when the committee would be expected to table its report. “Within thirty days,” he replied.

Though I felt strongly about the issue of sexual violence against women and wanted to be a part of an effective committee, I thought it best to decline owing to a previous commitment in Kolkata that overlapped with part of the committee’s one-month term. But Mr Chidambaram felt there would be time enough for me to participate in the deliberations of the committee and requested me to agree. In retrospect, I am glad I allowed myself to be persuaded; it was a rare opportunity to work with such an excellent team on such an important issue.

Gopal Subramanium, a former Solicitor General of India and an eminent jurist, was the third member of the committee. He was a whirlwind of energy, and a man of great compassion and learning...

Though the terms of reference seemed limited to reviewing the law to provide for speedier justice and enhanced punishment in cases of aggravated sexual assault, we knew that we had to come up with a holistic report for it to be meaningful, practical and sound.

At our first meeting on 26 December in Room 222 of the Vigyan Bhavan Annexe, Justice Verma slowly read out a few handwritten paragraphs which he felt could guide us.

“In our present tradition-bound society, structured on the basis of old values, when a woman is subjected to a crime like rape, it becomes a multiple crime. She is raped at home, then in public life, followed by an agonising cross-examination (by the police and) in the court, and the climax is reached when sensational reports about the crime against her appear in the media.

The victim of the crime finds public exposure more agonising than the crime (of rape) inflicted on her. (It is a continuing rape of her in full public view).

The (even more) humiliating aspect of the crime against a woman is that her status in the hierarchal structure of society also (obstructs) the way of securing justice for her. Thus, her social status compounds her gender injustice.

In a well-known case, the most obnoxious situation was that the court acquitted the accused, observing that the rapists were middle-aged and respectable of a higher caste who could not commit rape of a lower caste woman. This is the tragedy a woman had to face compounding gender and social injustice.

Every rape, even that by a single individual, is a gang rape and an aggravated sexual assault. Taking a holistic view of such a crime, the laws relating to all its aspects must be reviewed for its prevention and punishment. The scrutiny need not be confined only to those laws which relate to the investigation, prosecution and trial of the incident of rape.”

We knew that if we waited for the government to provide us with all the facilities we needed, the report would not be completed on time. Gopal put his entire office at our disposal and all his juniors volunteered to help. They roped in others: law students, young lawyers, a law professor. Even Justice Verma’s granddaughter, a student at Oxford who was holidaying in India, chipped in. Gopal’s trusted junior, Abhishek Tewari,was appointed the committee’s counsel and placed in overall organisational charge.

The young team of about sixteen members included four women. They all worked tirelessly, researching and collecting material and also collating the enormous number of suggestions (about 80,000) that poured in from the public. A political party even sent its memorandum of suggestions to Justice Verma’s house at 11.45 pm on 5 January 2013, fifteen minutes before the deadline, woke him up, and insisted that he personally sign the receipt!

We received advice from experts and academics from abroad, and heard the apprehensions and fears voiced by women’s groups, feminists, the lesbian-gay-bisexual-transgender (LGBT) community and many others. We also encouraged the administration and the police to share their points of view.

Even though our deadline was long past, the suggestions kept pouring in, and we felt it was important to examine all of them. Thereafter, on Saturday, 19 January and Sunday, 20 January we also held an open hearing in the main hall of Vigyan Bhavan from 9 am to 9 pm.

On 22 January 2013, a day before we were due to submit our report, we were still debating whether the crime of rape should be gender-neutral or gender-specific.

When I had helped draft a bill regarding sexual offences for the 172nd Report of the Law Commission, of which I was a member, we had made rape gender- neutral, which meant that the perpetrator could be “any person” and the victim could also be “any person”. This was the modern approach and based on the principle of equality. (This was also the accepted position in Bill No. 130 of 2012, pending in the Lok Sabha.)

But there was considerable weight of opinion pressing for this offence to be made gender-specific, that is, the perpetrator should be a man and the victim a woman. After a great deal of brainstorming with our young team we arrived at a consensus: though the perpetrator was identified as a man, the victim was to be categorised as gender-neutral, thus covering males, females, and transgender persons. Professor Mrinal Satish and Shwetasree Majumdar who were helping us draft the bill had to rework it extremely quickly.

The government ordinance issued immediately after our report was submitted kept the offence gender-neutral with regard to both perpetrator and victim, but when the Criminal Law (Amendment) Act, 2013 (hereafter referred to as Act 13 of 2013) was passed by Parliament, it made the offence of rape gender-specific with regard to both perpetrator and victim. It did not accept our in-between position, which effectively extended protection to males and transgenders. In my view this was a serious mistake, and Parliament failed to understand the injustice done thereby to so many men and transgender people.

Another issue was the age categorisation of a minor accused in such cases.

One of the main offenders in the Nirbhaya case was a 17-year-old, a minor who could be only tried by the Juvenile Justice Board rather than having to undergo the rigour of trial and suffer severe punishment by court. Consequently there was a great deal of debate about categorising minors as those below the age of 16 rather than the current 18.

Though the enactment of a criminal offence is not given retrospective effect and would not have affected the minor accused in Nirbhaya’s case, it was argued that a large number of rapes were committed by persons between the ages of 16 and 18 who should be brought within the ambit of the criminal law and punished accordingly.

While we studied this aspect of the matter, we also examined others, such as the neurological state of an adolescent brain, which undergoes significant changes in structure and function during the period of transition to adulthood. This was the reason the US Supreme Court abolished the death penalty for juveniles (Roper vs Simmons), holding that retribution is not proportional if the law’s most severe penalty is imposed “on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity”.

We also considered the United Nations Convention on the Rights of the Child, and the fact that transformation was hardly likely to take place if juveniles were put into jails with hardened criminals. Further, we considered the fact that recidivism had declined over the years and that children deprived of parental guidance and education had some chance of being rehabilitated if the reformatory system in the juvenile institutions was drastically improved.

Having examined all these aspects, we concluded that no change in the law was required. We recommended that the Juvenile Justice Act be implemented in both letter and spirit. The government accepted this position and the age for minors was not reduced in Act 13 of 2013.

Then came the issue of the extent of punishment.

We were against castration or death – which were suggested by various people – as punishments for various reasons detailed in our report. However, our standpoint that even the most grievous offence of rape did not require the imposition of the death penalty was not accepted by the government.

We were of the view that punishment for life, meaning the whole of life, would be sufficient and that the punishment of death already existed in the Indian Penal Code in the case of murder. (Nirbhaya had since died in Singapore, where she had been sent by the government for better medical treatment.)

Another hotly debated issue was that of marital rape.

This has to be looked at from a historical perspective and the principle of patriarchy. The offence of rape was originally based on the idea of theft of a man’s property. According to the old-fashioned notion on which the law was based, a woman belonged first to her father and, after marriage, to her husband. So if anyone had sexual intercourse with her before marriage, the father’s honour was affected and, after marriage, the husband’s.

According to the English common law of coverture, a woman was deemed to have consented at the time of marriage to having intercourse with her husband at his whim. In 1736, Sir Matthew Hale declared that a husband could not be guilty of rape on “his lawful wife, for by their mutual matrimonial consent and contract” she had agreed to this and this consent “she cannot retract”.

The situation has changed drastically since then. A woman’s autonomy and bodily integrity are concepts that have developed over the years, thus making rape an offence unless there is true consent – not merely consent by legal fiction.

In England in 1991, Lord Keith, speaking for the House of Lords, declared that “marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband”. The European Commission of Human Rights also endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim. The very essence of the Convention on Human Rights is derived from respect for human rights, dignity and freedom.

In South Africa, marital rape was criminalised in 1993. In Canada, too, it is a crime to rape one’s wife. In Australia, in 1991, the common law fiction of irrevocable consent was roundly rejected by Justice Brennan who said it “has always been offensive to human dignity and incompatible with the legal status of a spouse”.

These jurisdictions have also recognised that consent is most important and cannot be implied, and that marital rape cannot be considered a lesser crime with a more lenient sentence.

Consequently we strongly recommended that:

i. the exception for marital rape be removed,

ii. the law ought to specify that:

a. A marital or other relationship between the perpetrator [and] victim is not a valid defence against the crimes of rape or sexual violation;

b. The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity;

c. The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.

Despite our strong recommendation, the government did not agree to make marital rape a crime. Many voices, especially those of men, were raised against it, saying that, if implemented, it would be misused.

Another factor that was bandied about was the difficulty of finding evidence of rape in the bedroom – a statement that we found strange, considering that sexual abuse has been defined as an act of domestic violence in the Protection of Women from Domestic Violence Act, 2005. Some people raised the bogey that it would result in the unnecessary break-up of marriages.

However, in our view, it would have helped women who needed protection to act against violent husbands. And the police would have been duty-bound to register cases that were reported.

Unfortunately the law was not changed by Act 13 of 2013 and the marital exemption has been retained. Exception 2 in Section 375 of the Indian Penal Code reads: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

Retaining this exception in spite of our strong recommendation for its removal is unfair to women and violates their dignity and bodily integrity. It is against the spirit of human rights and the Convention on the Elimination of All Forms of Discrimination against Women.

Is a woman to be bound by the feudal fiction of irrevocable consent the moment she takes the marriage vows? On the one hand, the government talks of encouraging women, empowering them and enhancing their rights while with the other, it takes away their right to refuse sexual overtures. In this respect the government has failed to do the right thing by women and has been overpowered by patriarchal attitudes.

However, women should not lose heart. Change will come in time, I hope. We need to educate people about the constitutional right of equality. As Professor Sandra Fredman of the University of Oxford said, awareness programmes must be provided to ordinary people so that “marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife”.

During the course of our discussions, a question arose about the connection between age and legal consent.

According to the law under consideration, a partner under the age of 18 could not be deemed to have given his or her consent. But we felt that adolescent youngsters indulging in teenage romance and consensual sex should not be criminalised, so long as both were at least 16 years of age. Unfortunately, the government did not accept this recommendation either.

While many of our recommendations were not incorporated in Act 13 of 2013, some were, such as those relating to voyeurism and stalking.

We were glad to note that an acid attack (throwing or administering acid) had been included as a specific crime in Bill No. 130 of 2012. We had heard horrible stories of how a man would stalk a woman and if she objected to or turned down his advances would throw acid on her face, thus not only causing her unbearable physical agony but also permanently destroying her self-worth and esteem, causing her permanent physical damage and completely ruining her life. Consequently, we felt that this might have been averted if stalking were clearly an offence. It would also ensure the security and safety of women.

So who is a stalker? He has been defined as “any man who follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman”.The law provides that this monitoring by a man can also be by use of the internet, email or any other form of electronic communication. Our recommendation to impose a punishment of three years in jail and a fine was accepted.

On the night of 22 January 2013, Justice Verma and I left at midnight, while Gopal and the young team worked through the night, incorporating corrections and changes into the report. It was only a few minutes before 7 am on the morning of 23 January that Abhishek Tewari telephoned Justice Verma to tell him that work on the report was complete. It was then sent to the printer.

A hardbound copy was produced before us at 12.30 p.m. and the three of us signed it with Gopal’s Mont Blanc pen. It was then sent to the prime minister with a covering letter which expressed our hope that there would be speedy implementation of our recommendations “to retain public confidence in good governance”. Prime Minister Manmohan Singh thanked us for our labour of love and assured us that the government would “be prompt in pursuing the recommendations of the Committee”.

Though an ordinance and then the Act were passed promptly, many of our other suggestions, including those pertaining to Police Reforms, the Representation of the People Act, 1951, the Armed Forces (Special Powers) Act, 1958, and the Women’s Charter, as well as various recommendations relating to awareness and education in order to help change the patriarchal mindset of the country are still to be implemented.

Excerpted with permission from Talking of Justice: People’s Rights in Modern India, Leela Seth, Aleph Book Company.

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