SUGGESTIONS TO JUSTICE J S VERMA
COMMISSION
SET UP BY GOVERNMENT OF INDIA
FOR REFORMS IN "SEXUAL
ASSAULT" LAWS
Following is the letter sent by me to Justice J S
Verma Commission from Roys'
Law Firm :
|
Ref No. :
RLF/12-13/101/C
|
Date : January 04,
2013
|
Hon’ble Justice J. S.
Verma
Hon’ble Justice J. S.
Verma Commission
Respected Sir,
1. Following are our suggestions for
changes in procedural laws and certain procedures relating to the offence of
“Rape” as currently defined under Section 375 / 376A-D of IPC to achieve the
following objectives:
A. To instill confidence in the victim
and ensure that there is greater reporting of “Rape” cases.
B. To reduce the ordeal of the victims
who chose to report “Rape” cases to bare minimum.
C. To increase the rate of conviction
of reported “Rape” cases.
2. We are not expressing any views on
the following aspects which too require reforms / action:
a. Substantive Law defining the offence
of “Rape” and its punishment.
b. Sexual Offences other than Section
375 / 376A-D of IPC like Sections 354 & 509 of IPC.
c. Crime prevention measures to reduce
incidents of Sexual Harassment.
d. Enactments to tackle Sexual
Harassment at workplaces.
e. Psychological, legal and other
assistance to victims of Sexual Offences from the incident till rehabilitation.
3.
Our suggestions are
under three broad heads:
I. Medical Examination of
a “Rape” Victim
II. Registration of an
offence of “Rape”
III.
Trial Procedures in a
“Rape” case
MEDICAL EXAMINATION
4.
In the absence of
eye-witnesses and other evidence, the Prosecution Case in “Rape”, in most
cases, is solely based on Medical Examination and oral evidence of the victim.
5.
There are several
biological materials left in a victim’s body by the rapist apart from the body
itself being a record of the assault. Proper Medical Examination helps to
capture these materials and other records provided the same is done as early as
possible without the victim using the restroom, bathing, combing hair, changing
clothes and so on. Medical Examination Report can become clinching evidence
against the accused leading to certainty in conviction.
6.
Unfortunately in India, Medical
Examination hasn’t received the importance it deserves. The provisions of
Section 164A of CRPC which provides for Medical Examination is grossly
inadequate and ambiguous. There is no standard protocol for such Medical
Examination and preservation of samples. The use and abuse of the “two-finger
test” is well known. The availability of proper facilities for such Medical
Examination and their efficacy also leaves a lot to be desired.
7.
Victims in India do not
readily come forward to register a complaint of “Rape” and when they do so, due
to lapse of time, the Medical Examination, even if conducted at the best
possible place, may prove futile. Even if a complaint is registered immediately
after an assault, due to lack of awareness, the victim may use the restroom,
have a bath, comb hair, change clothes etc before approaching the Police. And
in some cases, the Police, out of genuine concern or otherwise, may advise the
victim to relax, use the restroom, change clothes etc.
8.
To start with, the
Government must evolve a standard protocol for Medical Examination and
preservation of samples and give it statutory recognition. This must take care
of the international best practices and must be modified from time to time. The
standard protocol for Medical Examination must obviously form part of medical
courses across India.
9.
Next the facility of
standard Medical Examination for “Rape” must be available like emergency
medical treatment in the Emergency Ward of notified hospitals in India free of
cost. The Government should invest necessary funds to equip these notified
hospitals with standard kits for medical examination and preservation of
samples. Medical Examination should be carried out only by a lady doctor and
lady attendants and nurses.
10.
Immediately after an
assault and even before she makes up her mind whether to file a complaint of
“Rape” with the Police, the victim should have the option of undertaking a
Medical Examination on her own in the Emergency Ward of a notified hospital. Medical
Examination should be the starting point. This is the most crucial
aspect of our suggestions. In India,
victims contemplate hard before making up their minds to file a complaint of
“Rape” and often do not find anyone readily available to confide in and seek
guidance. Often they are mentally devastated. The immediate family members and
friends also find themselves unable to take an immediate call. However all
these need not and should not delay an immediate Medical Examination.
11.
A victim who goes for a
Medical Examination, should be given a computer generated number from a
Centralised Nationalised Database after recording her details and scanning her
finger-prints and other parameters. This computer generated number should be
used for all proceedings in future which will ensure that the identity of the
victim is never ever revealed even if prosecution is launched and the accused
tried and convicted. This is the next crucial aspect of our
suggestions. This will also instill confidence in the victim to take the
tests and launch prosecution and thereby increase reporting of such cases. If
the victim desires, she can keep the “Rape” attack a secret even from her own
family members let alone the future husband, friends, neighbours etc, and yet
the accused can be tried and convicted.
12.
A copy of the Medical
Examination Report (which should contain only the computer generated number)
should be given to the victim who can thereafter decide whether or not she
should go ahead and file a complaint of “Rape”. If she decides to go ahead, the
Medical Examination Report from a notified hospital should obviously be
admissible in evidence.
13.
If the victim decides
not to go ahead with a complaint of “Rape” the Medical Examination Report
should never be disclosed by the hospital. The samples should be preserved for
a specified period before being destroyed.
14.
The procedures for
undertaking a Medical Examination along with other procedures to be followed by
a “Rape” victim should be made into a Standard Manual and publicized and
available in relevant websites. If possible there should be a help-line to
advise victims. Victims must be encouraged to undertake a Medical Examination
immediately after an assault.
15.
The victim should be
allowed to be accompanied by a person of her choice, who could be a social
worker or an advocate, throughout the process of Medical Examination.
REGISTRATION OF AN
OFFENCE OF “RAPE”
16.
Police Stations must be
equipped with sufficient lady officers, constables and volunteers to deal with
a complaint of “Rape”. A specific area of a Police Station should be earmarked
for dealing with a “Rape” victim. No male Police Officer should record a
complaint of “Rape”.
17.
The lady officers in
charge of dealing with “Rape” cases should not be given any “law and order”
duties and should be sufficiently trained in investigation and prosecution.
18.
Any “Preliminary
Enquiry” before lodging a FIR should be specifically prohibited. An FIR must be
lodged immediately upon receipt of a complaint of “Rape” without noting down
the name of the victim at that stage.
19.
Two types of victims
would go to a Police Station. Firstly those who have already undertaken a
Medical Examination. Secondly those who have not undertaken any Medical
Examination.
20.
For those victims who
have already undertaken a Medical Examination, the Police should accept the
computer generated number of the hospital after proper verification and note
the same in lieu of the name of the victim in the FIR. Thereafter, the Police
should obtain the Medical Examination Report directly from the hospital.
21.
For those victims who
have not undertaken a Medical Examination, the same must be compulsorily
undertaken immediately after lodging of a FIR.
22.
Immediately upon
lodging of FIR, the victim must be handed over a Standard Manual and taken for
Medical Examination by lady constables or volunteers. The victim must be
specifically told all the “Don’ts” before the Medical Examination like not
using the restroom, not taking bath, not combing hair, not changing clothes
etc.
23.
Upon Medical
Examination following the Police Complaint, the computer generated number that
is generated in the hospital should be used in lieu of the name of the victim
in the FIR. The Police should also obtain a copy of the Medical Examination
Report and give a copy thereof to the Victim.
24.
It should be open for a
victim to take a Medical Examination on her own, ie without the assistance of
the Police, after lodging of a FIR. The victim should hand over the computer
generated number to the Police who should accept it after proper verification.
Even in such cases, the Police should obtain a copy of the Medical Examination
Report directly from the hospital.
25.
Under no circumstances
should the name of the victim appear in any document. At every stage, the
computer generated number of the hospital must be used.
26.
In the event a victim
declines to undertake a Medical Examination, the fact must be recorded in
prescribed form and manner before the In-charge of the Police Station. In such
an event, there cannot be a computer generated number and hence the FIR should
proceed with the actual name of the victim. This fact should be specifically
stated in the Standard Manual and the victim made aware of this.
27.
One of the common
apprehensions of a “Rape” victim which discourages her from coming forward to
register a FIR is narration of the incident at multiple stages and reliving the
trauma. This aspect is often misused by the Police to harass the victim at the
instance of the accused. While the narration cannot be totally eliminated, the
trauma can be reduced and the harassment eliminated by recording the statement
only once before a lady Magistrate and treating the same as an “Affidavit in
lieu of Examination in Chief” without the victim being required to go to Court
for deposition.
28.
The victim should be
allowed to be accompanied by a person of her choice who could be a social
worker or an advocate, throughout the process of investigation.
29.
After recording of her
statement, if the victim is required to attend the Police Station for further
investigation, the same must be for valid reasons to be recorded in writing and
must be by summons in writing. The victim may require any such summons to be
served upon the person referred to in the preceding paragraph.
30.
The victim should not
be confronted by the accused at any stage of investigation.
31.
The publication of the
name of a victim of “Rape” or publication of the details of the crime in a
manner from which the identity of the victim can be ascertained whether in
media or social media or in any other forum or should be a punishable offence.
TRIAL PROCEDURES IN A
“RAPE” CASE
32.
Charge-sheet in “Rape”
cases should invariably be filed within 60 days.
33.
The computer generated
number of the hospital should be used in lieu of the name of the victim. In
fact, the name of the victim should not appear in any Court Record from the
Trial Court to the Supreme Court.
34.
The victim should be
allowed to be represented by an advocate at all stages from the Trial Court to
the Supreme Court. All summons to her should be served upon such advocate. The
advocate of the victim should be allowed to make oral and written submissions
at the final hearing.
35.
As stated earlier, the
statement recorded before the Magistrate after lodging of FIR should be treated
as “Affidavit in lieu of Examination in Chief” without requiring the victim to
depose in Court.
36.
Another common
apprehension of a “Rape” victim which discourages her from coming forward to
prosecute an accused is cross-examination. The same obviously cannot be
avoided. However the trauma can be reduced.
37.
The cross-examination
of a “Rape” victim must be invariably before a lady Court Commissioner. Apart
from the public prosecutor (who to the extent possible should be a lady
advocate for the purpose of cross-examination), the investigating officer, the
advocate of the victim, the advocates of the accused and the accused, no one
else should be permitted in the room.
38.
The Court Commissioner
should ensure that the victim is not confronted by the accused at the time of
cross-examination (taking care to ensure that the right of the accused to brief
his advocate is not impaired). Under no circumstances, the accused should be
allowed to cross-examine the victim directly. If possible, video-conferencing
should be used to isolate the victim from the accused and their advocates.
39.
The cross-examination
must be conducted in a time bound manner so that the victim is not
inconvenienced.
40.
The trial in “Rape” cases should be concluded
within six months of filing of the charge-sheet. Written permission of the
Principal Judge should be sought for any extension beyond six months and
written permission of the Chief Justice of the High Court should be sought for
any extension beyond one year.
41.
Any interim proceedings
initiated by the Accused including any under Sections 397 and 482 of the CRPC
before High Court should be concluded within a period of two months.
42.
All appellate
proceedings before the High Court following an order of conviction by Trial
Court should be concluded within a period of six months and shall be in camera.
43.
All appellate
proceedings before the Supreme Court following an order of the High Court
upholding the conviction of the Trial Court should be concluded within a period
of six months and shall be in camera.
44.
The publication of the
details of the proceedings from the Trial court to the Supreme Court in a
manner from which the identity of the victim can be ascertained whether in
media or social media or in any other forum should be a punishable offence.
45.
There should be a
prohibition for compounding of the offence at any stage except upon an
application by the victim when she desires to marry an accused.
SUMMARY OF SUGGESTIONS
46.
In the background
afore-stated, the summary of the main suggestions can be set out as follows:
I. Standard Protocol for Medical Examination and statutory recognition
thereof
II. Widespread availability of infrastructure for Medical Examination and
preservation of samples at notified hospitals
III. Enabling independent Medical Examination by victim before FIR and admissibility
of Report as evidence
IV. Identification of victim by computer generated number of the hospital
conducting Medical Examination from FIR till Supreme Court
V. No Preliminary Enquiry before FIR
VI. Mandatory Medical Examination after FIR if not conducted
earlier
VII. One time recording of victim statement before Magistrate
post FIR and treating it as “Affidavit in lieu of Examination in Chief”
VIII.
Charge-sheet, Trial,
High Court Appeal, Supreme Court Appeal and Interim Proceedings to be made time
bound
IX. Cross-examination of victim before lady Court Commissioners without
being confronted by accused
X. Total prohibition on publication of the identity of the victim and
details of the crime or proceedings from which identity can be ascertained
47.
Effective Medical
Examination and improved quality of oral evidence of the victim would increase
the rate of conviction in “Rape” cases.
48.
The ordeal of the
victim is reduced to the bare minimum as the involvement of a victim of “Rape”
from the time of the assault till the upholding of conviction by the Supreme
Court is restricted to the following steps:
I. Medical Examination
II. Lodging of FIR
III.
Recording of Statement
by Magistrate
IV.
Cross-examination
Further there is no scope for
disclosure of the identity of the “Rape” victim at any step. Further the
prosecution from the Trial Court to the Supreme Court would be concluded in a
time-bound manner.
The above as a whole should instill
confidence in “Rape” victims and increase reporting of “Rape” cases.
49.
General Suggestion: It may be worthwhile to de-link the “Sexual Assault”
offences against women as may be redefined by this esteemed Commission from the
IPC and codified as a separate law along with all procedures and ancillary and
miscellaneous provisions in respect thereof so as to serve as a “One-Stop Law”.
It may not be relevant for an effective prosecution but may just give the issue
the importance it badly needs. Further such a law may be handy for educating
women about their rights upon an unfortunate incident of “Rape”.
Regards,
For Roys’ Law Firm
Anirban Roy
Advocate
Along with:
Advocate Rahul
Mhaskar & Advocate Ratnarani Roy
Anirban Roy
January
04, 2013
Email: anirban@royslawfirm.com
Twitter : @AnirbanFromRLF
Facebook: Anirban
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