Revision as of 11:08, 12 October 2016

Changes in the law after February 3, 2013

From ‘Allegation raj’ that burns at stake

Principle of law? Ha-ha

R. BALAJI, IMRAN AHMED SIDDIQUI AND CHARU SUDAN KASTURI

Telegraph India

The changing times have fuelled concerns.

The laws that were changed after the December 16, 2012 brutality in Delhi and the backlash that dramatically transformed public discourse may have pushed the country into a tightrope walk between surer justice for the sufferers and a lynchmob presumption that the accused are guilty.

The gist of their views suggests that the cornerstone of law — every suspect is presumed innocent until proven guilty — must be kept in mind always while commenting on such sensitive cases. Besides, police investigation must be allowed to proceed in an environment free of shrill rhetoric on which an “allegation raj” feeds and fattens itself.

Law changes

Tarun Tejpal case

Tarun Tejpal, the Tehelka founder accused of raping a junior during a Goa literary conclave in November 2013, would have been booked for the much weaker charge of sexual harassment under the earlier laws.

Tejpal would have faced the prospect of a maximum of two years in jail and a fine under the earlier laws that described any sexual crime short of rape with the Macaulay-era wording “outraging the modesty of women” and prescribed a uniform punishment.

Under the new law, if convicted, he now faces anything between seven years and life in jail.

Justice Asok Kumar Ganguly case

The new laws will not apply to the charges against Justice Asok Kumar Ganguly because the alleged “unwelcome behaviour of a sexual nature” in December 2012 preceded the legal amendments carried out on February 3, 2013.

Going by the information made public so far, Ganguly, unlike Tejpal, would not have faced the charge of rape even under the new laws. But the punishment for the charges the former judge could face would have been different had the new laws applied, ranging from a year to seven years in prison.

Sexual Harassment of Women at the Workplace Act

Subjective terms

Added to this mix of criminal laws is the Sexual Harassment of Women at the Workplace Act that makes it mandatory for offices to set up a grievance redress mechanism to internally evaluate allegations of misconduct followed by a criminal complaint if the charges are found to be sound.

The cocktail of laws, however, is silent on the specifics of what can be viewed as humiliation, interference with work, creating an environment of intimidation and implied and explicit threats — the factors that define sexual harassment at the workplace.

It is equally unclear what constitutes “making sexually coloured remarks” or “unwelcome verbal conduct of a sexual nature” that the new criminal amendment law punishes with a year in jail.

But the rape laws describe in detail what constitutes the offence (see chart: ' The 2013 law vs the earlier position'). The definition of rape has been widened to such an extent that finding evidence to prove some charges would be difficult. In effect, although many feel that the law has been tightened, the task of prosecution may become all the more difficult to establish a charge in court in the absence of material evidence.

The law has yet to be tested in court conclusively but if cases under the new definition of rape are not eventually proved, future complainants may turn reluctant in approaching the police.

Witch-hunt frenzy

However, such questions have been blown away by the blizzard of opinions from those with little respect for the nuances of law that usually follow a complaint.

Senior lawyer K.T.S. Tulsi, who appeared on behalf of Tejpal at Delhi High Court, felt that a witch-hunt of those charged with sexual crimes was leading to premature presumption of guilt by society at large.

“The moment an allegation of sexual crime is made, people presume it to be true and start clamouring for the prosecution of the accused,” Tulsi said. “This is nothing but travesty of justice. Such is the frenzy that people believe in prosecution without following the procedure of law.”

Safeguards

The law does carry safeguards against misuse that in the absence of a public witch-hunt can ensure a fair trial, lawyers said.

Even before the new rape and sexual harassment laws came into being, the victim did not need to personally complain for the police to file an FIR — they could do so themselves. But the police need prima facie evidence to arrest the accused and to seek custody.

The new laws continue to allow the accused to challenge the complainant’s account in court, or during the police probe, senior lawyer Kamini Jaiswal said. “He can challenge the version given by the victim with facts,” she said.

The law continues to retain provisions that allow the accused, if acquitted, to seek damages in court from the complainant and the police for the time he spent in jail or the hurt to his reputation, although there is no provision for safeguarding the identity of the accused as in the case of the accuser.

“He can file a case of malicious prosecution against the complainant and the prosecuting agency and claim damages,” Jaiswal said.

But others have pointed out that such cases take time to conclude and reputations once destroyed are difficult to be restored with a stroke of a pen.

Accuser’s proof

Although the law does not bar complaints made even years after the alleged incident, it does put in place mechanisms to guard against false allegations.

The accuser has to provide details of the incident — the date, the time, place where she was harassed and any witnesses who may have come across the victim in a perturbed state soon after the incident — to substantiate her complaint, Jaiswal said.

The accused can challenge her version by producing alibi to suggest he was elsewhere at the time of the alleged crime.

But if both were present at the same place at the time mentioned — as in the cases of Tejpal as well as Ganguly — their personal accounts and that of witnesses will play a crucial role. Besides, the onus of proving the charges still lies on the prosecution.

The complainant’s version against Tejpal has been backed by three colleagues whom the young journalist had met immediately after the alleged assault. The intern had filed affidavits of three witnesses during her deposition against Ganguly.

A five-judge Constitution bench of the Supreme Court earlier in 2013 also held that if the complaint is filed late, the investigating officer should conduct a preliminary enquiry and be satisfied with its outcome before registering an FIR.

The 2013 law vs the earlier position

WHAT HAS CHANGED

Sexual harassment

OLD LAW

Section 354, the Indian Penal Code

Definition

• Reference limited to “assault or criminal force on a woman with the intent to outrage her modesty”

• Stalking, verbal abuse with sexual innuendoes, molestation and penile penetration of a woman’s body other than vagina were covered under this law as equivalent crimes

Punishment

Up to two years in jail or/and fine

New LAW

Amended Section 354

Category I

Seeks to explain what constitutes sexual harassment and defines differential punishment

• Physical contact and advances involving explicit sexual overtures

• Demand or request for sexual favours

• Sexually coloured remarks l Forcibly showing pornography

• Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Punishment

Up to one year in jail and/or fine

Category II

• Act with intent to disrobe a woman

• Watching or capturing a woman in a private act (bathing, naked, semi-naked or in a sexual act); capturing includes recording

Punishment

Between 3 and 7 years in jail and fine

Category III

• Stalking

Punishment

Between 1 and 3 years and/or fine

RAPE

• Section 375, the Indian Penal Code, deals with rape. The old law defined forcible sexual intercourse as rape

• The amended Section 375 defines rape as insertion of any object or body part by a man into any part of the body of a woman. Oral sex also constitutes rape. Forcing a woman to submit herself to the same by another man constitutes rape

• In the amended law, manipulating any body part of a woman that leads to rape as mentioned above will also be treated as rape. This holds gang rape participants accountable if they hold or bind the victim while someone else rapes her

• No change in the definition of forcible. It means against a woman’s will or consent; if the man isn’t her husband but she believes he is; she is intoxicated or drugged and in a state where she is unable to understand the nature and consequences of that to which she gives consent; or she is under 16

Old punishment

7 years to life imprisonment. But state governments frequently freed life convicts after 14 years

New punishment

7 years to life imprisonment. If the victim is reduced to a vegetative state or is seriously disfigured in addition to the rape, the maximum punishment can extend to the “remainder of that person’s natural life”

India alone names the accused; most countries only those convicted

India stands alone on `name & shame' policy

Atul Thakur, The Times of India Aug 16 2015

Most Nations Only List Those Convicted For Sex Crimes, Not Accused

The government's an nouncement that it would maintain a publicly available database of sex offenders is being portrayed as a significant step in addressing the threat posed by criminals whose crimes largely go unreported and hence encourage them to repeat the offence. It also addresses the general perception that such criminals tend to repeat their act and hence need to be monitored.

A look at laws in other major countries, however, suggests that only the names of convicted offenders are required to be listed. In many cases, the public at large does not even have access to this database though the police do.

A 2014 report of the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registration and Tracking (SMART), the US government agency to monitor such crimes, states that such registers are maintained by at least 19 countries including the US, the first country to pass a national sex offender registration law in 1994. Other major countries that have similar laws include the UK, Canada, France, Germany , South Africa and South Korea. According to the report Austria, Finland, Israel, Malaysia, New Zealand, Switzerland and UAE are among many countries that have considered or were considering such laws.

A study of conditions of registration as sex offender in the US, UK, Canada and Australia shows that it is mandatory for those convicted for certain sexual crimes to register themselves in the sex offender database. Typically, the offenders are classified in various categories depending on the seriousness of the offence and the perceived threat to society.

In the US, there are three levels of registered sex offenders. Following their release after the conviction, sex offenders are required to register with the community's di vision of criminal justice service, which examines their case. Depending on factors like the use of force, victim's age, number of victims, use of weapons, alcohol or drugs to assault the victim, offenders are classified into level 1, 2 or 3. Level 1 offenders are people who are considered the least likely to repeat the crime. Level 3 is the classification given to those judged most likely to commit the crime again.

Offenders are further clas sified as `sexual predator', `sexually violent offender' or `predicate sex offender'. Level 1 offenders, if not classified in the above three categories, are required to register themselves for 20 years. Level 2 and Level 3 offenders along with people classified as predators, violent offenders or predicate offenders have to register themselves for life. Failing to provide information of their whereabouts to the register is an offence punishable with imprisonment for up to ten years.

Other countries too have levels of classification and registration periods for sex offenders. In a majority of the countries that maintain sex offenders' registries, the database is not publically available. For instance, the UK, Germany , France, Canada and Australia don't maintain a publically available database. The monitoring is done by informing the local police and community leaders when a person convicted of a sexual offence starts living in a particular community .

The Times of India’s View

The home ministry's proposal to `name and shame' those chargesheeted for sexual offences by putting their names in the public domain runs completely contrary to the principle that underlines our justice system ­ the accused are presumed to be innocent until proven guilty. Other countries too have a system of making the names of sexual offenders public, but nowhere is this done prior to conviction. The reasons are obvious. A person charged with a sexual crime may ultimately be judged innocent by the courts. How fair would it be in such cases for his reputation to have been badly tarnished in the meantime? The ministry's suggestion that where this happens the name can be taken off the list does nothing to redress the damage done. It also needs no great imagination to see how such a system could be badly abused by people out to settle scores with one another. It's an idea that needs to be amended before it is rolled out.

See also

Age of consent Crimes against women: India Juveniles, benefits and privileges of Juvenile delinquency in India Especially the section 'Rape by juveniles' Premarital sex

Other articles about rapes in India

Rapes in India<> Rapes in India: court verdicts<> Rape definitions unique to India<> Rapes in India: the legal position after 2013 <>Rapes in India: Compensation and help for survivors