Question Of Domain (CBI)

THE JUDICIARY

Question of domain

V. VENKATESAN
in New Delhi

The Supreme Court order allowing CBI investigations without State governments’ consent is seen as a setback to federalism.

“Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation which has the effect or tends to have the effect of whittling down the powers reserved to the States…. Let it be said that federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle – the outcome of our historical process, and a recognition of the ground realities” (emphasis added).
THE above observations of Supreme Court judge Justice B.P. Jeevan Reddy in his leading majority opinion in the Bommai case (1994) failed to convince the five-judge Constitution Bench that ruled, on February 17, that the High Courts and the Supreme Court can direct, without the consent of the State government concerned, investigation by the Central Bureau of Investigation (CBI) into offences committed in a State.
The nine-judge Bench in the Bommai case, on the basis of the extraordinary facts pointing to the collusion of State governments in the demolition of the Babri Masjid in 1992, had held that State governments that pursued unsecular policies could be dismissed under Article 356 of the Constitution. However, the principle laid down by Justice Jeevan Reddy with regard to the courts’ responsibility to safeguard federalism should have bound the five-judge Bench. But it did not.
The five-judge Bench, headed by Chief Justice of India K.G. Balakrishnan and comprising Justices R.V. Raveendran, D.K. Jain, P. Sathasivam and J.M. Panchal, held that its decision would neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of powers. The Bench claimed that it had the power and obligation to protect the fundamental rights zealously and vigilantly.
The judgment was an outcome of a nine-year-old case involving the killing of 11 Trinamool Congress workers at Chhota Angaria village, Medinipur district, West Bengal, on January 4, 2001. It was alleged that Communist Party of India (Marxist) workers had committed the crime. The Calcutta High Court, acting on a petition filed by the Committee for Protection of Democratic Rights (CPDR), West Bengal, ordered a CBI probe into the case in 2001 without seeking the consent of the State government. The CPDR told the court that it had no faith in the impartiality of the Criminal Investigation Department (CID) of the State, which was then investigating the case.
The West Bengal government appealed against the High Court’s order as it felt that the State CID was an independent agency and the High Court was wrong in rejecting its plea to give more time to the CID to complete the probe. The case was a complicated one because even the bodies of the victims were not to be found, raising doubts about the veracity of the allegations. The appeal was referred to the Supreme Court’s Constitution Bench in view of the substantial question of law it raised.
The judgment, written by Justice D.K. Jain, sought to expand further Article 21 of the Constitution, which guarantees that no person can be deprived of his or her life or personal liberty except under the procedure established by law. The Bench held that the State had a duty to enforce the human rights that provide for fair and impartial investigation against any person accused of committing a cognisable offence. This aspect of the judgment strengthens human dignity inherent in the guarantee of right to life, in Article 21, which is a basic feature of the Constitution. However, while giving effect to this principle, the five-judge Bench went beyond the constitutional mandate.
The CBI is a special police force set up under the Delhi Special Police Establishment (DSPE) Act, 1946, for the investigation of offences in any Union Territory. The superintendence of the CBI vests in the Central government, which specifies, by notification, the offences or classes of offences to be investigated by the CBI.
Section 5 of the Act empowers the Central government to extend the powers and jurisdiction of the CBI to any area in a State, not being a Union Territory, for the investigation of specified offences. This power is restricted and qualified by Section 6, which reads: “Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union territory or Railway area, without the consent of the government of that State.”
Section 6 is a compulsion and a constitutional imperative arising from the federal nature of the country’s Constitution and the division of powers between the Union and the States. Without Section 6, Section 5 would be outside the legislative competence of Parliament and, as such, unconstitutional and void.
The basic principle of federalism is that the legislature and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre, but by the Constitution itself. The Constitution incorporates the concept of federalism in various provisions. Lists II and III under the Seventh Schedule give plenary powers to State legislatures in specified subjects.
Police, including Railway Police, is a State subject (Entry 2 in List II). The Centre’s power to extend the CBI’s jurisdiction to the States can be traced to Entry 80 in List I. This entry rules out expressly such extension without the consent of the State concerned.
In the recent Prakash Singh case, the Supreme Court showed an extraordinary interest in reforming the police forces in the States and making them truly professional, insulating them from extraneous political pressures. There can be no dispute about the merits of this intervention by the judiciary. But, as experts have noted, that is no better an argument for acquisition by the Union of powers given to the States than it is for the declaration of President’s Rule in States. As B.R. Ambedkar stated in the Constituent Assembly, the Centre has no authority to intervene in provincial affairs for the sake of good governance in the provinces. Can the judiciary appropriate to itself an authority that is expressly denied to the Centre by our Constitution-makers? This is what the Supreme Court seems to have done while justifying its decision in this case. Section 6 of the DSPE Act, according to the five-judge Bench, cannot control the High Courts or the Supreme Court.
Article 142 of the Constitution mandates that the Supreme Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. However, as laid down by the Supreme Court’s five-judge Bench in an earlier case, this Article cannot be used to build a new edifice where none existed by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. The Bench noted this concern expressed by counsel for the West Bengal government, K.K. Venugopal, but did not bother to answer it.
Attorney-General G.E.Vahanvati, who, as the Solicitor General at that time, appeared for the Centre during the arguments before the Bench, defended the courts’ power to direct CBI investigations without the consent of State governments. He argued that in a federal structure it was the duty of the courts to uphold constitutional values and enforce constitutional limitations, as the ultimate interpreter of the Constitution.
There is no dispute over the court’s claim – supported by the Centre – that judicial review acts as the final arbiter to give effect to the distribution of legislative powers between Parliament and State legislatures and to show any transgression by such entity. But there was no dispute between the Centre and the States over the distribution of legislative powers, nor was there any allegation that either of them transgressed those powers.
One would agree with the Bench that any direction by the Supreme Court or the High Court in the exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violation of the federal structure because courts act as guardians and interpreters of the Constitution whenever the federal structure is violated by legislative action. But the present case did not involve any violation of the federal structure by legislative action.
The judgment included bland assertions of courts’ powers, such as the following: “Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution.”
The Constitution prevents Parliament from encroaching upon States’ rights by distributing the legislative powers between them. How the courts could approve similar encroachment by themselves, even while restricting Parliament from doing so in the guise of protecting fundamental rights, is not clear.
Entry 2A of List I is about the deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State. The CBI is not an armed force, and, therefore, cannot be subject to the control of the Union. Overlooking this and Entry 80 of List I, the court justifies its exercise of the “same power” (which is non-existent!) that the Union could exercise in terms of Section 5 of the DSPE Act.
Paragraph 46 of the judgment classifies the victims, whose rights the court has sought to defend in this case, rather unreasonably. It is only those victims of incidents with national and international ramifications who deserve the courts’ intervention, in the absence of the State government’s consent, to direct a CBI investigation. That the courts may well ignore the plight of ordinary victims who fail to grab the attention of the national and international media is the inference one would draw from the judgment.
According to the Supreme Court, if the investigation by the State police lacks credibility or does not inspire confidence, then also the constitutional courts can direct a CBI investigation. The judgment may well open a Pandora’s box because it is common to find all manner of victims alleging bias when the State police investigate. If courts have the discretion to decide whether in a particular case the State police lack credibility or do not inspire confidence, then it will be difficult for courts to justify their discretion – in the absence of clear guidelines – and this can invite the charge of arbitrariness.
In a sense, the February 17 judgment has removed the bar on the CBI going ahead with its investigation into cases assigned to it earlier by courts without State government consent. The CBI’s probe into the March 14, 2007, police firing at Nandigram, West Bengal, in which 14 people were killed, is one of them. The Supreme Court may have to decide, in the light of this judgment, whether directions to the CBI to investigate cases such as the Chhota Angaria massacre and the Gujarat carnage satisfy the conditions laid down by it.
Constitutional courts such as the High Courts and the Supreme Court could have better defended the right to fair investigation into certain crimes by ensuring the effective monitoring of the State police than by directing the CBI to take up such cases, which is contrary to the letter and spirit of federalism, notwithstanding the CBI’s poor track record in freeing itself from political influences and its inadequate manpower to investigate all and sundry cases.

Chief Justice A P Shah

THE JUDICIARY

A distinguished judge
For many people, the Delhi High Court, in recent years, has emerged as an alternative to the Supreme Court in deciding cases involving the public interest. The credit for this goes partly to the distinguished judges who comprise it. This became clear when Chief Justice A.P. Shah retired on February 12, two days after delivering the Manushi judgment. The age of retirement of High Court judges is 62.
Many people recalled the fine attributes that ensured for Justice Shah such a unique place in the annals of the higher judiciary despite not having served the Supreme Court. After all, he was one of the 43 Chief Justices of 18 High Courts who could not make it to the Supreme Court in the last 10 years. His non-elevation – due to the non-transparent functioning and lack of consensus within the Supreme Court’s collegium – was widely deplored within the legal community.
An elevation in time to the Supreme Court would have enabled him to continue his contributions as a judge for three more years, as judges of the Supreme Court retire at the age of 65. Observers paid tributes to Justice Shah’s extraordinary legal acumen and commitment to socio-economic values of the Constitution. As a judge, he displayed remarkable qualities of liberalism and sensitivity – attributes admired by practising lawyers and litigants alike.
Justice Shah is known for writing several landmark judgments during his earlier terms as a judge in the Bombay High Court and as the Chief Justice of the Madras High Court. Defending the freedom of speech and expression, he once quashed the orders of the government not to telecast the national award-winning documentaries based on the terrorism in Punjab and the Ayodhya issue. He directed Doordarshan to telecast them. He struck down the decision of the Central Board of Film Certification not to release the documentary film Aakrosh on the communal pogrom in Gujarat and directed grant of certificate to it.
In B.G. Deshmukh v. State of Maharashtra, he directed the Shiv Sena to pay damages for encroaching on the rights of citizens during a bandh sponsored by it. Through another judgment, he restrained the Central and Western Railways, the Railway Police and the Municipal Corporation in Mumbai from taking any action against visually challenged vendors/hawkers and directed them to frame a scheme to provide them with livelihoods.
During his tenure in the Bombay High Court, he also protected the rights of students suffering from dyslexia and issued directions to ensure the implementation of the reservation policy for the disabled in the State government, State corporations and local bodies. He always adopted a proactive attitude towards the rights of disabled people.
As the Chief Justice of the Delhi High Court, Justice Shah is well known for heading the Benches that delivered the recent decisions in the Naz Foundation and the judges’ assets cases. In the Naz Foundation case, the Central government, which had opposed the argument for decriminalising Section 377 of the Indian Penal Code, accepted the High Court’s reasoning decriminalising adult consensual sex, and decided not to appeal against it.
In the judges’ assets cases, the Supreme Court is yet to take a decision whether to appeal against the High Court’s judgment holding the 1997 and 1999 resolutions requiring declaration of assets binding on Supreme Court and High Court judges. All these pronouncements have enhanced his stature as a people-friendly judge.
Even after retirement, Justice Shah will continue to be qualified for appointment as a judge in the Supreme Court for the next three years. The qualification mentioned in Article 124(3) (a) of the Constitution only requires that the appointee should have been a High Court judge for at least five years.
V. Venkatesan

Judicial Reforms

Judicial reforms get a fillip

N. R. Madhava Menon

The 13th Finance Commission's recommendation to allocate Rs. 5,000 crore to improve the justice delivery system constitutes a landmark opportunity.

Never before in India's judicial history has the government come forward to invest a large sum, Rs.5,000 crore, to improve the justice delivery system. The 13th Finance Commission recommended this for the five-year period 2010-15. It is to the credit of Union Law Minister Veerappa Moily that the judiciary has at last received the attention it deserves, to be able to implement his Vision Plan of reducing the life-span of a case in the system to three years, a target to be achieved within a three-year period. Whether the judiciary, which historically has been reluctant to absorb changes, will rise to the occasion and implement the Plan now depends entirely on the judges and lawyers who operate the system.

How could the money be utilised in time and with good effect? Would the High Courts be a little proactive and get an action plan prepared in advance without waiting for instructions from the bureaucrats in Delhi? Since the Union government seems to have approved in principle the need to make investments in the judiciary to expedite justice delivery, one can expect more money being made available beyond 2015, if the judiciary is prepared to deliver, modifying in the process the systemic and processual ills that have been plaguing it for long.

Bottom-up reforms

There are six components to which the money is earmarked, all of which may not be equally relevant to all the States. Obviously the focus of the expenditure is on the trial courts where over 90 per cent of all arrears reside. However, the administrative and supervisory control exercised over them by the respective High Courts is so absolute that nothing much can happen without the Chief Justice and the portfolio judges in charge of the districts concerned allowing them the freedom to innovate and change. It is hoped that High Courts for once would welcome the initiatives from below and provide the leadership for the effective implementation of the plan even if they do not personally support the changes proposed. This may require amendment to the rules of the court: on an experimental basis this could be allowed in those districts where the plan is to be implemented. The causes of delay are not the same everywhere and a district-wise approach alone can be effective in the beginning. It is more so because the support of the Bar and court staff are critical for the success of the plan. This is easier to mobilise at the local level.

Shift courts

Half the money (about Rs.2,500 crore) is set apart to increase the number of courts operating during morning and evening hours, staffed either by regular judges on payment of additional compensation, or by re-employed retired judges. Andhra Pradesh, Gujarat and a few other States have already experimented successfully with courts working in shifts, and they will naturally have a headstart in being able to expand the scheme throughout the State with the Central funds now available. It is for the High Court to decide what type of cases should be referred to the shift courts. If they are assigned small cause matters or petty offences, both pending and current, the regular courts will be left with more serious matters requiring greater attention and more judicial time. Each State will thus be entitled to double the existing number of courts through the shift system, with no additional investment on physical infrastructure.

The High Courts will be well advised to act quickly to recruit the required number of judges and staff, invest in their training for the tasks assigned, work on the rules required to regulate their functioning, and put in place a monitoring cell in the High Court to coordinate and oversee implementation.

ADR centres in districts

Considering the potential of Section 89 of the Civil Procedure Code (CPC) for the settlement of cases without trial, a sum of Rs.850 crore is assigned. Of this, Rs.100 crore is to hold 10 mega-Lok Adalats per High Court each year, and five Lok Adalats a year in each judicial district of the States. As Lok Adalats are already part of the process of dispensing justice, its systematic expansion will not pose any serious problems.

The ADR centre, one in each district, is an innovative measure to address the problem of mounting arrears through the mechanisms of mediation, conciliation, arbitration and negotiated settlement as provided for in Section 89 CPC. There are mediation centres in some High Courts, but very few in the districts. An investment of Rs. 1 crore per district ADR centre is to be used to develop the physical infrastructure and training of mediators, conciliators and arbitrators. A sum of Rs.600 crore for physical infrastructure and Rs.150 crore for training that have been earmarked are attractive enough for the system to act swiftly for the effective implementation of these new judicial institutions at the taluk and district levels.

To augment the resources of the Legal Services Authority, an additional sum of Rs.200 crore over five years is earmarked. Again this sum is to be allocated to the States in proportion to the number of courts within their jurisdiction.

Capacity building

A sum of Rs.250 crore to provide additional support to train judicial officers, Rs.300 crore to equip State Judicial Academies with necessary infrastructure and another Rs.150 crore to train public prosecutors are recommended for the five-year period. A sum of Rs.15 crores per High Court to build infrastructure for judicial academies is provided.

The faculty and infrastructure now available in the Academies are inadequate. A cadre of judicial trainers has to be developed and the practice of deputing district judges temporarily to manage training programmes should end. There is need for trainers in the areas of information-communication technology, interpersonal relationships, court and case management, judicial administration, judicial statistics, judicial performance assessment, judicial planning and so on. At least a third of the faculty members of the judicial academies will need to come from outside ‘law', from management, social sciences, technology and public administration.

There is the need for a Dean of Academic Affairs in every judicial academy, who will not only develop and manage programmes but coordinate with other institutions in India and abroad to enhance the quality of training. There is the need for a research and publication cell in each academy.

Court managers

The district judges are over-worked and have very poor professional support systems. They devote a considerable length of time on non-judicial work, to manage which they have neither the expertise nor the training. It is therefore a good initiative recommended by the Finance Commission to provide qualified court managers with degrees in management (such as MBA) or law to be employed to assist judges. In planning the docket, in mobilising the parties concerned and their witnesses, in coordinating the distribution of work, in monitoring progress and removing bottlenecks, in helping assess performance and providing liaison with the public under instructions from the judge, the court manager can give assistance to make a significant difference in judicial administration.

Heritage court buildings

There are courts at the trial and appellate levels that are over 100 years old: some of them date back to the East India Company. For the restoration and conservation of 150 such buildings, Rs.450 crore has been allotted. This will help tell the story of the noble traditions of Indian justice for future generations if it is coupled with setting up a museum containing oral history accounts from lawyers and judges associated with each court, and rare court documents from different periods.

Conclusions

The government has declared that the next 10 years would mark the “Decade of Innovation” in every sphere of life, and the next five years, a period for judicial reforms. In pursuance of this, the Law Minister announced a National Litigation Policy under which government litigation is to be regulated to avoid unnecessary cases being filed by public authorities. The Finance Commission advised the government to release the money for States under this package, seeking that States also announce a litigation policy on the lines of what the Union government has done.

The grants announced to the States and the High Courts are without the sort of conditionalities usually attached to Centrally-sponsored schemes. The release of yearly instalments is, of course, based on the utilisation of funds allotted to the six different components of the scheme. It is now up to the High Courts in consultation with the State governments to quickly prepare plans in their respective jurisdictions and start implementation within the next few months. The State Judicial Academies should be asked to do the preparatory work under the supervision of a committee of senior judges, if necessary seeking advice from consultants. The litigant public now has a right to demand from the judiciary quicker delivery of justice, planned elimination of arrears, and enhanced access to justice. The judiciary is indeed on trial on its commitment to timely justice. No more alibis would be acceptable to the public.

(Professor N.R. Madhava Menon is the Founder-Director of the National Judicial Academy, and a former member of the Law Commission of India.)

Erosion of federal space in education

M. A. Baby

The Hindu Students after appearing for the CBSE exam seen outside a centre in New Delhi. File Photo: Sushil Kumar Verma

The Central government is implementing reforms unilaterally, as though education is in the Union List. This infringes the federal spirit of the Constitution and the objective of promoting harmony in variety.

A spate of reforms in the field of education, some of them already implemented and some awaiting implementation, have brought the subject of education into the focus of public debate. These include the abolition of examinations at the Class X level, the unification of syllabi of higher secondary courses and the introduction of a national common entrance examination. Moves towards public-private-partnership in education, the legislation on the Right to Education, the proposal to create a National Commission for Higher Education and Research (NCHER), and steps towards compulsory accreditation, foreign direct investment and prevention of unfair practices also come in the same genre.

To be fair, education is getting the attention that is due for it from the Central government for the first time since the great initiatives in institution-building in the post-Independence period. There is some recognition of the role that education plays in national development. There is a significant national consensus on the three broad objectives of enhancing access, equity and excellence. An increased awareness of the pivotal role of education in national development finds reflection in the Eleventh Five Year Plan. The overall financial allocation for education is five times that of the Tenth Plan. The Prime Minister is justified in calling the Eleventh Plan an education plan.

While there are no two views on the need for changes in the system of education with a view to increasing access, equity and quality, the nation is divided on the direction of the changes and the modalities for their implementation. Human Resource Development Minister Kapil Sibal was on record as having said that he would do for the educational sector in 2009 what Manmohan Singh did for the financial sector in 1991. The Minister does not conceal his neo-liberal agenda. While Manmohan Singh had introduced the policies of liberalisation in the 1990s almost stealthily and apologetically, Mr. Sibal is brimming with confidence, giving the impression of an honest and well-meaning reformer.

But honesty is not enough in the determination of educational policies. Education concerns all the people. Different individuals and groups have different concerns in education, which have to be reconciled in policy planning and implementation. It is the primary responsibility of the Ministry of Human Resource Development (MHRD) to provide a common platform to contest ideas and aspirations, on the basis of which a consensual agenda of action could be evolved and implemented. It appears that Mr. Sibal continues to act more as an attorney than a judge in these matters.

The confusion between the neo-liberal commitments of the Minister and the inclusive aspirations of the people was nowhere more apparent than in the conflicting statements made by Mr. Sibal on the question of the fee structure of students and the salaries of private school teachers. At a meeting of school Principals in Delhi, he declared that private schools in Delhi would be free to charge fees and pay teachers as they liked, once the Right to Education Act came into force. The Delhi State Act that regulates the fee structure and salaries would be rendered inoperative by the Central legislation. But following a volley of protests from the people, he had to clarify the next day that the Delhi State Act would continue to be in force. What the incident brought out was the Minister's divided loyalties. He had a fleeting realisation that his personal and party loyalties to the ideology of liberalisation are at odds with the aspirations of the large majority of the people, to whom he is ultimately answerable.

The sad part is that such instances where the voice of the people is recognised are few and far between. In this instance, the response to public opinion was instantaneous, as protests emanated in Delhi itself. But India is a vast country and all the people cannot come to Delhi to impress upon the MHRD about their reservations on decisions that adversely affect them. Hence, a healthy solution to the problem lies in decentralising the process of policy making and implementation. Unfortunately, the MHRD is moving in the opposite direction, at a very fast pace.

Take, for instance, the decision to enforce a common syllabus, textbooks and examination for Plus-Two courses. The National Curriculum Framework 2005, drafted under the chairmanship of Professor Yash Pal, observed that the “pluralistic and diverse nature of Indian society” demanded the preparation of “a variety of textbooks and other materials” to “cater to the diverse needs of different groups of students” so as to “promote children's creativity, participation and interest and thereby enhancing their learning.” In pursuance of the objective, the States were encouraged to develop their own curriculum framework in a participative manner. The lead that Kerala took in framing the Kerala Curriculum Framework (KCF) through large-scale people's participation extending to the panchayat level received acclaim. Now Mr. Sibal wants to do a volte face, that too without the sanction of a new curriculum framework. This will amount to undermining the structural and curricular reforms initiated during the term of the first United Progressive Alliance government. The administrative convenience that a centralised common entrance examination will provide is touted as the excuse. The objective of education is reduced to coaching students for competitive examinations, conducted in a rigid framework. The idea of education as an inclusive process of unleashing the creative potential of diverse groups and individuals, leading to the creation of harmony in variety, which Professor Yash Pal dreamt of, is lost in the process.

The story of the legislation to set up the NCHER is no different. While the broad administrative objective of bringing all educational activities within a single central regulatory framework as suggested by the National Knowledge Commission and the Yash Pal Committee have only been partially met (as medical and agricultural education are kept out of the Commission's purview), the academic objective of giving greater autonomy to universities, colleges, teachers and students have been ignored. The heart of the problem lies in the failure to define autonomy and accountability as the academics' freedom to do what society expects them to do. Such an understanding would necessitate appropriate Central and State regulations, leaving room for academic initiatives and administrative flexibility at the institutional and individual level. The proposed NCHER Bill unfortunately tends to centralise powers in the hands of a few experts, who would be invisibly but effectively controlled by the Central government, leaving little role for States in higher education.

The framers of the Constitution, exposed to the trauma of Partition and divisive domestic demands posing challenges to the unity and integrity of the nation, conceived a constitutional framework with a unitary slant. Still, they left education in the State List, obviously in appreciation of India's cultural, geographical and religious plurality. Education was moved to the Concurrent List during the Emergency through strong-arm tactics. Nevertheless, it was done constitutionally, at least in form, through an amendment to the Constitution.

Now decisions are being taken by the Central government unilaterally, as though education is in the Union List. In the process it is usurping some of the powers for policy making and regulation that the States enjoyed. The federal spirit of the Constitution is infringed upon in the process. The objective of promoting harmony in variety through a pluralistic educational system is also defeated.

(M.A. Baby is Minister for Education and Culture, Kerala.)

Bill On Sexual Offences

LEGISLATION

Half measure

T.K. RAJALAKSHMI

The government takes a step towards speedy trial in cases of sexual offence but stops short of making definitional changes in law.

IN the second week of December, as the country watched the developments in the case against former Haryana Director General of Police S.P.S. Rathore, a host of senior government representatives, including Union Law Minister M. Veerappa Moily, promised to review the laws dealing with crimes against women. Moily’s Ministry announced that it would introduce the Sexual Offences (Special Courts) Bill, aimed at ensuring speedy trials in rape cases and including procedural measures to improve the mechanism of delivery of justice. Home Minister P. Chidambaram declared that the police all over the country should be asked to treat all complaints as first information reports, though it was not clear what purpose such an announcement would serve without consultations with the State governments on the issue, since law and order is a State subject.
More worryingly, however, the Law Ministry’s draft Bill (a copy of which is with Frontline) is not an adequate response to the situation it is meant to address. It is no doubt an important step towards speedy trials of sexual offenders: it stipulates that the trial for any sexual offence shall be concluded as expeditiously as possible, preferably within six months. However, it stops short of making the kind of definitional change, recognising the various forms of sexual assault on women and children, that would make a substantial difference. There is also no reference to an already existing piece of draft legislation, “The Criminal Law Amendment Bill 2002”, painstakingly prepared by women’s organisations and vetted by the National Commission for Women (NCW). Planned as a Bill in 2002, though it never reached that stage, this document dealt with the definitional aspects of sexual assault as well as procedural aspects of securing justice for victims. The Law Ministry did not bother to consult either the Ministry for Women and Child Development, the nodal Ministry dealing with women and children, the NCW or women’s organisations. Veerappa Moily assured a delegation of women’s organisations led by Rajya Sabha member Brinda Karat, who met him, that he would discuss the issue with the related Ministries but ignored the fact that a draft had already been prepared by the women’s groups.
Draft by women’s organisations

The demand for a comprehensive law dealing with sexual assault was first made at least 17 years ago but it gathered momentum in the past decade. The draft by the women’s organisations was initially prepared by former Law Commission member and Supreme Court advocate Kirti Singh; this was then followed by countrywide consultations on the subject, with the NCW taking up the cause. In 2007, a quasi-government report on the magnitude of child sexual abuse further bolstered the demand for a comprehensive law that would cover child sexual abuse.
The government’s decision to respond was at least partly because of the sustained media spotlight on the Rathore molestation case, pressure from sections, including the media, the rising crime graph and efforts by women’s organisations. Yet, it does not incorporate all the changes in the definitional, substantive and procedural laws relating to child sexual abuse (including molestation and rape) and the sexual abuse of women that were demanded by the women’s groups.
These groups, led by the All India Democratic Women’s Association (AIDWA), met Veerappa Moily on January 12. Referring to the 172nd Report of the Law Commission regarding sweeping changes in laws relating to rape, molestation and sexual harassment, they argued that the definition of sexual assault and rape in the Indian Penal Code (IPC) was archaic, restrictive and inadequate.
The organisations, which included the National Federation of Indian Women, the Young Women’s Christian Association of India, the All India Women’s Congress, the Joint Women’s Programme, the Muslim Women’s Forum, the Centre for Women’s Development Studies and the Guild of Service, underscored the immediate need to enlarge the definition of rape to include oral and anal sex. They also pointed out that several forms of sexual abuse, such as incest, stalking and protracted sexual assault, were not even recognised or defined in the IPC.
Moily, according to a member of the delegation, talked more about introducing procedural changes rather than definitional ones. The memorandum pointed out how on several occasions courts had debated on what the expression “outraging the modesty of a woman” meant. A major definitional change would be to replace this expression in Section 354 of the IPC with “unlawful sexual contact”; besides, the women’s groups said, there must be a distinction between the molestation of an adult and that of a child and that the latter should invite more stringent punishment.
Definition of abuse

The fundamental problem is that all kinds of sexual offences barring rape are covered under Section 354. Child abuse involving anal and oral sex is not treated as rape but as molestation. The women’s groups said that “rape” should be redefined to include oral and anal sexual assault and insisted that the punishment in the case of minors, who are often forced or incited to perform sexual acts on adults, should be more stringent.
The Sexual Offences (Special Courts) Bill, 2010, does talk about amendments to the IPC, proposing the insertion of Section 376E defining unlawful sexual contact. But it does not touch the definition of rape under Section 375. The Criminal Law Amendment Bill, 2002, had suggested the full substitution of the existing Section 375 of the IPC, replacing the existing definition with that of a comprehensive one of sexual assault that meant, among other things, not only penile penetration but the introduction, to any extent, by a man of an object or part of the body into the vagina, or anus or urethra of a woman or a child. This also included the manipulation of any part of the body of a child so as to cause penetration of the vagina, anus or urethra. The document also specified stringent punishment for rape, including incestual rape and rape by a person in a position of trust and authority.
Separate punishments were recommended for public servants and policemen and for people running remand homes and jails and hospitals for committing sexual assault on pregnant women, persons with mental or physical disability or on persons under 16. The recommended provision covered gang rape, persistent sexual assault and assault causing disfigurement or grievous bodily harm to the victim.
The recommended punishment in all the categories was “not less than ten years but which may be for life and also liable to fine”. Under Section 376, the punishment for rape is not less than seven years, extendable to ten years or for life unless the victim is the man’s own wife and not under 12 years of age, in which case the punishment is only for two years. The existing law also gives the right to courts to impose a sentence of imprisonment for a term of less than seven years “for adequate and special reasons to be mentioned in the judgment”.
The document prepared by the women’s groups suggested removing Section 376A and introduced a new Section, 376D, defining punishment for unlawful sexual contact. This covered various kinds of unlawful sexual contact, including those with a minor, unlike in the government’s draft. Also, it defined a minor as under the age of 16, instead of under 12 as defined in the existing section. It used the word “minor”, while the government’s draft uses the term “young person”.
The document of the women’s groups defined unlawful sexual contact and suggested the punishment for this. It said if “any man with a sexual purpose touches, directly or indirectly with a part of the body or with an object, any part of the body of a woman, without the consent of such a woman, he shall be punished with simple imprisonment for a term which may extend to three years or with fine or with both. The government draft exempts from punishment men for such non-consensual sexual contact with their wives. Its definition of unlawful sexual contact (Section 376E) says: “Whoever, with sexual intent, touches directly or indirectly, with a part of the body or with an object, any part of another person, not being the spouse of such a person, without the consent of the such other person, shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both.”
Even the quantum of punishment differs in the two documents: that of the women’s groups recommend punishment up to five years for unlawful sexual contact with a minor as compared with three years in the government one.
“The government has not taken molestation and its effects, seriously enough,” said Kirti Singh, who is also the legal convener of the AIDWA. The piecemeal approach of the government while looking at laws governing sexual assault has disappointed women’s groups.
Changes in Indian Evidence Act

The government’s draft proposes amendments to the Indian Evidence Act, 1872, borrowing, almost literally, from the draft of the women’s groups, but stops short of adopting all its suggestions. For instance, it proposes the insertion of Section 53A in the Act – an amendment that could have been made long ago – with respect to the issue of consent and the character of the victim: “In a prosecution for an offence under Section 376, 376A, 376B, 376C, 376D and 376E or for attempt to commit such an offence, where the question of consent is in issue, evidence of the character of the victim or of her previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.”
But it is silent on another suggestion made by the women’s groups that Section 114A of the Indian Evidence Act be modified on the issue of consent. Their draft suggested that if a person alleged to have been sexually assaulted has stated that it was not with consent, courts were to presume that it was so. The government draft has not incorporated this suggestion, though it has accepted another addition to the Indian Evidence Act. – “where the question of consent is in issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to her general immoral character, or as to her previous sexual experience with any person for providing such consent or the quality of consent”.
Changes in law relating to police investigation

The women’s groups have welcomed the procedural amendments in the Code of Criminal Procedure (Amendment) Act, 2008, relating to police investigation, medical examination of the victim, videotaping of the statement of a young person and separation of the child victim and the accused in the courtroom.
But this Act was notified as late as December 2009. It stipulates that offences under Section 376 and Sections 376A to 376D of the IPC should be tried, “as far as practicable”, by courts presided over by women judges and lays down the procedure in the case of arrest of a woman, stipulating that an arrested person shall be examined immediately by a medical officer.
It also provides for the recording of a rape victim’s statement at her residence and, “as far as practicable”, by a woman police officer in the presence of the victim’s parents or guardian, or a social worker. There is also a provision enabling the recording of statements/confessions by audio-video electronic means. The Act says, too, that the trial of offences under Sections 376 to 376D, IPC, shall, “as far as possible”, be completed within two months.
The women’s groups have also suggested other procedural amendments such as immediate medical attention and counselling for victims of sexual abuse, particularly children, in view of the trauma they undergo. Expert witnesses such as child psychologists and doctors, they said, should be allowed to depose on the victims’ behalf and children should not be made to give statements repeatedly to the police, magistrates and courts.