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Gender Stereotyping in the Media

March 17, 2013 7:53 am / 1 Comment on Gender Stereotyping in the Media

Most cases of violence against women anywhere in the world are attributable to gender stereotypes which exist in the society. Unfortunately, the way women are portrayed in mass media not only strengthens these stereotypes but also influences minds of the younger generations to shape their lives in consonance with this social construct.

The following videos show how gender stereotyping is prevalent in mass media across the world. Although the videos analyse the American media, one would agree that the situation in India is no different. It is probably even worse.

(This post is the first in a series we will be putting up on this blog in our attempt break gender stereotypes and to create awareness on gender issues in the society. Ideas, opinions and comments are welcome.)

PIL Challenging RTI Rules of the Punjab and Haryana High Court and Subordinate Judiciary

March 3, 2013 3:52 pm / Leave a comment

by Arjun Sheoran

RTIA Public Interest Litigation Petition (PIL) challenging provisions of the High Court of Punjab and Haryana (Right to Information) Rules, 2007, (“Rules”) as well as identically framed rules for the subordinate judiciary of the Punjab, Haryana and Chandigarh was filed by me on 14th February  A copy of the petition along with all annexures is accessible here. These rules are framed under Section 28 of the Act, which in the case of High Courts is the Chief Justice.

The main grounds for challenging the Rules was that they contravened the express provisions of the Right to Information Act, and also went against the letter and spirit of the Act. Some examples of such illegal and arbitrary Rules could be:

  • The Public Authority, in cases where the information requested was not in its jurisdiction, instead of forwarding the RTI application to the concerned authority, as is mandated as per the RTI Act, not just returns the application, but also forfeits the application fee.
  • A separate fee (Rs. 20 per page) is provided for information that concerns the life and liberty of a person. Such differential fee system was never envisaged in the RTI Act.
  • A fee of Rs. 100 is charged for filing appeals to the First Appellate Bodies (even though no such fee is prescribed in the RTI Act, or for appeals to the Central Information Commission under the Rules).
  • In case an applicant asks for information concerning a business contract/proposal/tender document etc, a minimum fee of Rs. 500 is prescribed.

All the above Rules (and many more) are not only against the letter and spirit of the RTI Act, but also are nothing but a means of disincentivizing a common person from accessing information thus infringe an Indian citizen’s right to ask for accountability and transparency. A legislation as progressive as the RTI Act is being shackled by anti-transparency rules.

In fact, all over India, the rules framed by Competent Authorities have been under challenge because, unlike the rules framed by the Central and State Governments, these authorities have not really faced the same scrutiny maybe because these authorities are not accountable directly to the public per se.

A bench of Hon’ble Mr Justice AK Sikri and Mr Justice RK Jain presided over the matter and verbally expressed their desire to change the HC RTI rules, to bring them in consonance with the Central RTI Rules. Justice Sikri, in fact, had pushed for amendments to the Delhi High Court RTI Rules during his tenure as the Acting Chief Justice of the Delhi High Court, and similarly promised to take action on the RTI rules of the Punjab and Haryana High Court, as a result of my petition. Thus, the petition was ordered to be treated as a representation before the Rules Committee of the High Court. A copy of the order can be found here.

I also filed a supplementary representation before the Rules Committee, in addition to my petition (which was ordered to be treated as a representation). This supplementary representation inter alia contains proposed/suggested amendments to the present Rules, a report by CHRI on Delhi High Court’s RTI Rules, and the latest order of the Hon’ble Supreme Court, where the Allahabad High Court has agreed to amend its RTI Rules, after they were challenged by the NGO Common Cause. A copy of the supplementary representation is available here.

It is hoped that prompt and effective action would be taken in this regard in the days to come.

(Arjun is a Lawyers for Change Fellow. His areas of work and interest include transparency and accountability laws, civil liberties and criminal justice system reform. He graduated from National Law School of India University, Bangalore in 2011 and currently practices law at the Punjab and Haryana High Court at Chandigarh. Arjun can be reached at mail@arjunsheoran.com.)

Hire and fire – the Plight of Nurses in Bangalore

February 22, 2013 12:50 pm / Leave a comment

by Comrade S Balan

Compiled by Robin Christopher J

It feels so nice when one sees a newspaper saying that the Government has stepped up to create thousands of jobs for the people of this Country. But, then I wonder do they even understand what they actually said or is it just uttering and muttering! And still like an idiot I go through the whole advertisement to find out what it was and to my dismay its simple logic. You hire people for cheap wages and don’t provide them with any benefits and if some sane person questions that, just prove that the laws are complied with and then who cares, life just goes on. This advertisement is a reflection of the sick reality of the way the Government in order to sell those jobs for money fired 408 nurses working in the major government hospitals in Bangalore. During the protests the nurses highlighted their problems by abusing the minister and guess what, the minister who doesn’t listen to what the nurses have to say was quite sensitive enough to know of the language and the words used to abuse him and the next day with the tip of his pen at one stroke he passed the termination order and deployed the police to chase the nurses out of Bangalore Medical College premises.

This is an on-going struggle in Bangalore, wherein the nurses (428 in numbers), mostly female, have been denied job as nurses in Boring, Vani Vilas, Minto and Victoria hospitals at Bangalore. They have been rendering unblemished service as nurses over a period ranging from 1 to 5 years. They have a basic qualification of Pre-University College and have successfully completed three and half years course of Diploma in Nursing and Midwifery. They are also registered with the Karnataka Nursing Council.

By Notification no. 24LWA96, Bangalore dated April, 11 1997 Government of Karnataka prohibited the employment of nurses on contract basis in hospitals (both private and public) under Section 10(1) of the Contract Labour (Regulation and Abolition) Act – 1970. It is very significant that the Health Department of Government of Karnataka flouted the above referred notification and employed 428 nurses on contract basis in 4 Government Hospitals referred above. The nurses were in active service and their employment was renewed periodically. They made several representations to the authorities under the Ministry of Health to regularise their service and to pay the salaries on par with nurses on permanent roles.

Since 09.01.2013 onwards they were in Bannappa Park requesting to regularise their service and they also were communicating with the Dean and Director, BMCRI (Bangalore Medical College and Research Institute) to permit them to join their duties. On 24.01.2013 they approached the Labour Commissioner, Karmika Bhavana to make conciliatory effort regarding their request and demands, in the meanwhile to permit them to join their duties to protect the interest of patients and general public. Despite service of notices, neither Dean and Director nor any of his representatives participated in the conciliatory proceedings. On 29.1.2013, the Chief Administration Officer of BMCRI participated in the proceedings. The Additional Labour Commissioner advised to restore normalcy. On part of the nurses, they agreed to withdraw from the protest and to join their duties forthwith. The CAO agreed to permit them to join their duties in respective hospitals on or before 04.02.2013. Thereafter, the matter was posted on 02.02.2013, 04.02.2013, 05.02.2013, 07.02.2013, 11.02.2013, 13.02.2013 and 15.02.2013 but neither CAO nor any representatives from BMCRI appeared, but the nurses were advised to be calm assuring that some positive development would take place. Finally nothing had happened except bald and vague assurances from BMCRI, Labour Department and other intra Governmental agencies.

On 16th February 2013, Hon’ble Medical Education Minster terminated the service 408 staff nurses at the stroke of the pen on the ground that they approached Court of Law, demanded enhancement of salary and regularisation of services. According to the Minister any request for better service condition is an offence and liable for termination of service. As of now we have made applications under Sections 30-A and 33(2) of ID act to the Deputy Labour Commissioner. We are intending to challenge the termination notice issued by the Governing Council headed by the minister.

(Comrade Balan is a Trade Union Leader and an Advocate who is spearheading workers’ struggles in Karnataka. He has a rare quality of blending law and struggle politics. Robin is a Lawyers for Change Fellow practising law with Comrade S. Balan in Bangalore.  Robin is also associated with Karnataka Communal Harmony Forum as a Joint Secretary of Bangalore. He graduated from School of Law, Christ University in 2012. Robin can be reached at robincj7@gmail.com.)

Rest In Peace Rahul Cherian

February 8, 2013 1:44 pm / Leave a comment

by Gowthaman Ranganathan

Yesterday I learnt of the demise of Rahul Cherian. I had never met him but had heard much about him and was deeply saddened. In the past, I have followed the work of inclusive planet of which he was a co-founder. I thought that the best way to pay tribute to him will be to read up on his work and to keep it going in our own ways.

I came across the page on the Indian Express website which contains many of his editorials. Reading them was a great pleasure and I am sharing some of his ideas below.

There was much debate and discussion post the Delhi incident but little was spoken about sexual assault on persons with disabilities. Drawing our attention to the same, Rahul writes, “Unfortunately, in the vociferous debates on the subject, the dialogue has not once extended to sexual assault and sexual abuse of persons with disabilities. Most dialogues do not extend to persons with disabilities anyway, and this one is no different.” He goes on to propose concrete measures to tackle cases of sexual assault against persons with disabilities. A more detailed set of recommendations were sent to the Verma Committee, many of which finds its place in the final report.

Denouncing sympathy as a solution for the emancipation of persons with disabilities, Rahul along with his colleague seek a rights based understanding. Citing the lack of adequate constitutional safeguards in Article 15 of the Constitution against prohibition of discrimination against persons with disabilities, they write, “…persons with disabilities have no protection from discrimination under the Constitution. Nor does the Constitution prescribe that special provisions can be taken to ensure that persons with disabilities are included in society. Given this Constitutional framework, all downstream law-making relating to persons with disabilities is based on sympathy and the mood of the law makers at the given time and not based on the recognition of the fundamental rights of persons with disabilities. No wonder then that the 100 million people with disabilities remain outside the ambit of what is considered “society.””

In another editorial, he vents his anger against politicians and persons with political ambitions who were using persons with disabilities for their ulterior motives. Criticizing them, Rahul says, “persons with disabilities are still regarded as second-class citizens in this country and we cannot do anything without the charity of able-bodied persons. Yes, it is true that we need accommodation and changes to the infrastructure in many cases for us to be able to exercise our rights on an equal basis with others. But these changes and accommodation must be based on the recognition of the equal rights of persons with disabilities and not on pity… the real concern of a person with disability is that s/he should be treated with respect and as a person first and foremost, and not a tool.”

On another occasion, despite the Civil Aviation Requirements (CAR) stating that “No airline shall refuse to carry persons with disability or persons with reduces mobility”, Jeeja Ghosh, a teacher with cerebral palsy was deplaned by an insensitive pilot. In light of this incident, Rahul writes, “However the CAR does not prescribe the consequences of non-compliance by airlines. The CAR also requires all airlines to run sensitisation programmes for assisting passengers with disabilities. However, it is silent on the exact nature of sensitisation programmes, thereby leaving the scope of training to the discretion of individual airlines. As is evident from Jeeja Ghosh’s experience, the training given, if any, is sorely inadequate”

Commenting on the favorable amendments to the copyright law, towards which he contributed much, he says, “The new law enables persons with visual impairment, dyslexia and other print disabilities, their families and friends, as well as non-profit organisations, libraries and educational institutions to take any book and convert it into Braille, audio, large-font and digital formats, without seeking the prior permission of publishers.”

As I read all this, I realize that he has done much, much more than is expected of 39 years – He has left behind a better place, I hope his work continues to its desired goals – RIP Rahul.

(Gowthaman is a Lawyers for Change Fellow. His areas of work and interest include gender, sexuality and civil liberties. He graduated from National Law School of India University, Bangalore in 2010. Gowthaman can be reached at gowthaman.ranganathan@gmail.com.)

Rage

January 30, 2013 12:21 pm / 1 Comment on Rage

by Aqseer Sodhi

(Disclaimer: Views expressed in the post are those of the author and are not necessarily shared by the organizations/programmes the author is associated with.)

We’re ridiculous, honestly.

We expect people in power to do what is best for the people who aren’t.

Men, upper castes, the government, the rich, the educated, the liberals. Some of them will, most of them won’t.

Why would maulvis want women entering the sanctum sanctorum of their prized masjids, mucking up the interiors, lessening the pride, privilege and power associated with the restricted access?

Why would half naked priests want to let us into their temples and risk feeling as ordinary as us?

Why would the government want the population to be educated, strident and questioning? A resigned janta expecting no more than TV and a few annas thrown their way before elections is far more manageable.

If the government undertook community building initiatives, or tried to do anything long term about the Naxals, they would actually have to earn their votes instead of dividing them up; and isn’t that too much to expect them to sign up for voluntarily?

EVERYONE takes shortcuts. People in power are no exception.

We, are to blame.

For being naive. For thinking that people in power will check themselves. For expecting them to do what’s best for us. For helping sustain the status quo.

Family halls at Muslim restaurants, “aurat masjids”, sit at home when you’re bleeding from your vagina because you are impure, never mind that YOU WOULD NOT EXIST IF I DID NOT HAVE THE ABILITY TO MENSTRUATE YOU TURD, separate coaches for women, separate temples for dalits; we let them disenfranchise us, deprive us and then ghettoize us.

We then thank them properly for carving out reservations in a system so wracked with inequality and lack of opportunity that really, they should thank us for being the placid cattle that we have emulated this entire time.

I have been to upwards of fifty BPL Muslim households in three states these past few months. A few things are the same. The interiors are clean, the exterior usually filthy, the woman is home, sometimes educated, capable of working, but not allowed to by her husband, who obviously would rather his children starve than allow his wife to do everyone the favour of making a little extra on the side. They know NOTHING, and I mean NOTHING about government schemes that are allegedly used as the carrots to buy their votes. They have given up on the public education system. They have no expectations of the government. They make do. They smile. THEY SMILE. THEY ARE NOT ANGRY.

And this gets me, every single time. Actually no, that’s a lie. It got to me today. I wasn’t angry this entire time.

Today, in the one room house of a young woman who supports her family of five by cleaning homes in far away “Mumbai”, TODAY, I felt anger. So far, not having encountered anything like what you see in Slumdog or read about in Shantaram, I was not convinced I was seeing the reality of living below the poverty line. I wanted to see desperate, undignified poverty. I was met with families that like buying clothes, and shoes, and dressing up, and cable, and jewellery, that like food and drink and a good time; but do all of this on infinitesimal budgets and live day to day.

Today, my twentieth day doing this work, today I felt anger. Felt something. Anger at their condition, anger that her father nearly reached his deathbed trying to get his house constructed under the great Awas Yojna named, obviously named, after Dear Departed Mrs. Gandhi, after whom the antarashtriya hawaiadda of the home of the 84 riots is also, oh so appropriately named.

And through the telling of this tale of her father’s debilitation, she smiles, checks her phone, talks to her nieces and nephews and despite repeated requests not to, gets up and makes five cups of tea. They cannot afford five cups of tea. They cannot afford one extra packet of milk a day; she was telling me that five minutes into the interview and making me the most amazing chai at the end of it. There is resignation, and bravery; courage and fortitude and generosity, but there is no anger that can be translated into action.

Why?

Because decades of incompetence and a uniquely patronizing attitude has, in a masterstroke, got us to expect nothing of the government. As long as there is a semblance of law and order, hell, a government, and some platitudes, some show of governance and better things to come, we are content.

As long as men buy us flowers and pretend to give a shit when we’re menstruating, pregnant or weeping, we are content.

Do not grope or rape us, kind masters, that is all we can ask of your uncontrollable sexual appetites and wild, wilful natures; we will gladly make ourselves scarce in public, and speak softly, remain invisible so as not to cause any strain to your sensory organs or sensibilities. Thank you ever so kindly for allowing us to breathe and get through a lifetime without our vaginas being torn asunder by your ever mighty penii that we dare not question, literally or figuratively lest you beat our brains out of our skulls. Thank you again for allowing me to go to school and giving me some milk when I was young so I could push your inheritor out of my body after producing five undesirable young girls that you can ill afford. In return for being allowed to live without being raped, and for the privilege of being yours, I will wear forty five marks of ownership, change my last name, give up my rights to property, sweep, dust, clean after you, cook for you, whatever you like master, whatever we can afford, stroke your ego, absorb your anger, tell myself you love me when you slap me so hard it leaves marks on my face, kill myself looking after the five girls and one, crown jewel of a son, collapse my family and friends with yours, forget my life before you were kind enough to take me off of my father’s hands and never, ever, threaten your virile and treacherous masculinity. Is that good enough sire? Or shall I throw some marital rape and all of my parent’s earnings in? Oh and vaginal douches and tightening creams, yes, of course, I will maintain my figure, vaginal elasticity and sweet breath for you. Of course, sire, of course.

I cannot speak for dalits, adivasis and minorities.

In our childish belief that those in power will do right by us, we have surrendered everything we had, our rage included.

Let’s get real. We’ve got to fight. Nothing is coming our way on a silver platter. Nor can we expect it to.

(Aqseer is a Lawyers for Change Fellow and currently works with Centre for Social Justice in Ahmedabad. She graduated from National Law School of India University, Bangalore in 2012. Aqseer blogs at aqseersodhi.blogspot.in and can be reached at sodhiaqseer@gmail.com.)

Letter to a law student interested in social justice – William P. Quigley

January 15, 2013 1:02 pm / Leave a comment

As a young lawyer interested in working in the field of social justice, there are many questions which come up in one’s mind. In the present day, it is a fact that very few graduates from the best law schools of the country take up the practice of law in courts. Even fewer join social movements or take up work which involves using the law to uphold rights and ensure accountability. Most law schools do have sub cultures where seeds of changing the face of the world are sown, but somehow they wither away in the cloud of main stream lawyering. Why do these revolutionary feelings wither away? Is it dying faith in the judiciary or is it the lack of social responsibility? How does one keep the fire burning?

The following is an extract from an inspirational piece written in the form of a letter by a professor sharing his thoughts on the decision of his student to take up the practice of social justice law. The professor addresses questions which arise in a student’s mind and narrates what to expect in the profession and how to go about it. The full text is available here.

Excerpts of the letter from the professor to his student (with added information within parentheses on the context or portion of write-up):

(The letter begins with the professor narrating a true story where law students had volunteered to work in the Gulf Coast region of the United States which was badly affected by Hurricane Katrina. At the end of a week’s work, the students were sitting together sharing and reflecting on their experience)

“The last law student to speak had just returned from working
in the destroyed neighborhood. He had been picking through a
home trying to find evidence that might lead to the discovery of
who owned the property. He also was on the verge of tears. The
experience was moving. The student felt that it was a privilege
to be able to assist people in such great need. It reminded him,
he paused for a second, of why he went to law school. He went
to law school to help people and to do his part to change the
world. “You know,” he said quietly, “the first thing I lost in law
school was the reason that I came. This will help me get back on
track.”

(The professor goes on to write…)

“The first thing I lost in law school was the reason that I
came.” What a simple and powerful indictment of legal education and of our legal profession. It is also a caution to those of us
who want to practice social justice lawyering.

Many come to law school because they want in some way to
help the elderly, children, people with disabilities, undernourished people around the world, victims of genocide, or victims of
racism, economic injustice, religious persecution or gender
discrimination.

Unfortunately, the experience of law school and the legal profession often dilute the commitment to social justice lawyering.

The repeated emphasis in law school on the subtleties of substantive law and many layers of procedure, usually discussed in
the context of examples from business and traditional litigation,
can grind down the idealism with which students first arrived. In
fact, research shows that two-thirds of the students who enter
law school with intentions of seeking a government or public interest job do not end up employed in that work.”

(“Social justice lawyering is counter-cultural in law school and in the legal profession”)

“Those who practice social justice law are essentially swimming
upstream while others are on their way down. Unless you are
serious about your direction and the choices you make and the
need for assistance, teamwork and renewal, you will likely grow
tired and start floating along and end up going downstream with
the rest. We all grow tired at points and lose our direction. The
goal is to try to structure our lives and relationships in such a
way that we can recognize when we get lost and be ready to try
to reorient ourselves and start over.”

(“Be willing to be uncomfortable”)

“I think this is the first step of any real educational or transformative experience – a willingness to go beyond your comfort
zone and to risk being uncomfortable.

The revolutionary social justice called for by Dr. King is not
for the faint of heart – it calls on the courage of your convictions. It takes guts.

Questioning the fairness and justice of our laws and policies is
uncomfortable for most because it makes other people
uncomfortable.

Many people are perfectly satisfied with the way things are
right now. For them, our nation is the best of all possible nations, and our laws are the best of all possible laws, and therefore, it is not right to challenge those in authority. For them, to
question the best of all possible nations and its laws is uncalled
for, unpatriotic and even un-American. These same criticisms
were leveled at Dr. King and continue to be leveled at every
other person who openly questions the fairness and justice of
current laws and policies.

So, if you are interested in pursuing a life of social justice, be
prepared to be uncomfortable – be prepared to press beyond
your comfort zone, be prepared to be misunderstood and criticized. It may seem more comfortable to engage in social diversions than to try to make the world a better place for those who
are suffering. But if you are willing to be uncomfortable and you
invest some of your time and creativity in work to change the
world, you will find it extremely rewarding.”

(“Critique the law”)

“Critique of current law is an essential step in advancing justice. Do not be afraid to seriously criticize an unjust or inadequate set of laws or institutions.

.

.

Critique alone, however, is insufficient for social justice advocates. While you are engaged in critique, you should also search
for new, energizing visions of how the law should and might
move forward.

You have some special talents in critiquing the difference between law and justice because of your legal training.

All laws are made by those with power. There are not many
renters or low-wage workers in Congress or sitting on the bench.
The powerless, by definition, are not involved in the lobbying,
drafting, deliberating and compromising that are essential parts
of all legislation. Our laws, by and large, are what those with
power think should apply to those without power. As a student
of law, you have been taught how to analyze issues and how to
research.

Social justice insists that you first examine these laws and
their impacts not only from the perspective of their legislative
histories, but also from the perspective of the elderly, the working poor, the child with a learning disability and the single mom
raising kids, who are often the targets of these laws.

So how do you learn what the elderly, the working poor or the
single moms think about these laws? It is not in the statute, nor
the legislative history, nor the appellate decision. That is exactly
the point. If you are interested in real social justice, you must
seek out the voices of the people whose voices are not heard in
the halls of Congress or in the marbled courtrooms.”

(“Critique the myths about lawyers and social justice”)

“Lawyers who invest time and their creativity to help bring
about advances in justice will tell you that it is the most satisfying and the most fulfilling work of their legal careers. But they
will also tell you that social justice lawyers never work alone –
they are always part of a team that includes mostly non-lawyers.

Take civil rights for example. There is no bigger legal, social
justice myth than the idea that lawyers, judges and legislators
were the engines that transformed our society and undid the
wrongs of segregation. Civil rights lawyers and legislators were
certainly a very important part of the struggle for civil rights, but
they were a small part of a much bigger struggle. Suggesting that
lawyers led and shaped the civil rights movement is not accurate
history. This in no way diminishes the heroic and critical role
that lawyers played and continue to play in civil rights advances,
but it does no one a service to misinterpret what is involved in
the process of working for social justice.

Law school education, by its reliance on appellate decisions
and legislative histories of statutes, understandably overemphasizes the role of the law and lawyers in all legal developments.
But you who are interested in participating in the transformation of the world cannot rely on a simplistic overemphasis of the
role of the law and lawyers. You must learn the truth.

In fact, the law was then and often is now actually used
against those who seek social change. There were far more lawyers, judges and legislators soberly and profitably working to
uphold the injustices of segregation than ever challenged it. The
same is true of slavery, child labor, union-busting, abuse of the
environment, violations of human rights and other injustices.”

(“Build relationships with people and organizations challenging injustice: Solidarity and community”)

“Social justice advocacy is a team sport. No one does social
justice alone. There is nothing more exciting than being a part of
a group that is trying to make the world a better place. You
realize that participating in the quest for justice and working to
change the world is actually what the legal profession should be
about. And you realize that in helping change the world, you
change yourself.

Solidarity recognizes that this life of advocacy is one of relationships. Not attorney-client relationships, but balanced personal relationships built on mutual respect, mutual support and
mutual exchange. Relationships based on solidarity are not ones
where one side has the questions and the other the answers. Solidarity means together we search for a more just world, and together we work for a more just world.”

.

.

“Humility is critically important in social justice advocacy. By
humility, I mean the recognition that I need others in order to
live a full life, and I cannot live the life I want to live by myself.
By humility, I mean the understanding that even though I have
had a lot of formal education, I have an awful lot to learn. By
humility, I mean the understanding that every person in this
world has inherent human dignity and incredible life experiences that can help me learn much more about the world and myself.”

Further in the 28 page letter, the professor writes about the importance of engaging in regular reflection, being patient and flexible and being joyful, hopeful, inspiring and loving. The full text of the letter is available here.

Our recommendations to the Justice J.S. Verma Committee

January 10, 2013 9:38 am / Leave a comment

RECOMMENDATIONS ON AMENDING LAWS TO PROVIDE SPEEDIER JUSTICE AND ENHANCED PUNISHMENT IN SEXUAL ASSAULT CASES

A. Definitions

  1. The term ‘rape’ as defined under Section 375 of the Indian Penal Code should be replaced with the term ‘sexual assault’. The same was recommended by the 172nd Law Commission Report on Review of Rape Laws in March, 2000.
  2. The definition of the term ‘sexual assault’ should be broad and should include acts of physical or sexual violence against a person in violation of the person’s bodily integrity and sexual autonomy. The words ‘bodily integrity’, ‘sexual autonomy’, ‘consent’, and ‘prohibited conduct’ should be defined in order to limit the judicial discretion.
  3. Forced sexual intercourse by a husband with his wife should be treated as ‘sexual assault’ and should attract punishment as prescribed.

B. Filing of FIR and Investigation

  1. The law should provide for at least one female police officer to be deputed at every Police Station.
  2. FIR in cases of sexual assault should only be registered by a female police officer.
  3. The law should explicitly state that no adverse inference would be drawn from a delay between the date of violence and the date of reporting of the act of violence.
  4. The Investigating Officer should preferably be a female police officer.
  5. Medical examination should be carried out on the date of FIR itself, preferably in the presence of female family members. The same should be carried out on a priority basis as expeditiously as possible.
  6. There should be a team of forensic experts in every district or one team for 3-4 districts. It should be the duty of this team to collect evidence from the body of victim of sexual assault, accused (if arrested) and from the place of occurrence. The report of forensic expert should be used to corroborate the other evidences during trial.
  7. Statement under Section 164 of the Cr.PC should be recorded on the same day when the FIR is filed.
  8. The survivor should never be called to Police Station during the investigation stage, for any further statement etc.
  9. If the Duty Officer of the concerned Police Station refuses to record the FIR, the law should provide for strict and immediate action to be taken against the concerned officer.
  10. During the stage of investigation, whenever the Investigation Officer wants to meet the victim for any purpose, he/she should record the reasons and purpose in the case diary before meeting and that part of the case diary should be signed by at least two police officers on duty at that time.
  11. The relevant portion of the above mentioned case diary should be produced before the Judicial Magistrate within 24 hours and the concerned Judicial Magistrate should sign such extract of case diary at the time of presentation and one copy be also retained by him/her.
  12. The charge sheet under Section 173 of the Cr.PC should be filed within 30 days from the date of recording of the FIR. If the investigating officer fails to file the Section 173 report within 30 days, strict action should be taken against him/her.
  13. The whole investigation should be carried out under the direct supervision of the concerned Superintendent of Police and he/she should countersign the charge sheet before filling it in the concerned court.
  14. In every hospital, a counselor should be appointed only for the purpose of counseling of the survivors of such incidents.

Trial

  1. The trial in cases of sexual assault must be conducted in fast track courts and should be conducted on the day to day basis. Fast track courts should be set up in every district for the same.
  2. The trial proceedings should be conducted in camera and should also be audio and video recorded. The importance of holding rape trials in camera mandated by Section 327 (2) and (3) Cr.PC was reiterated in State of Punjab v. Gurmit Singh (1996) 2 SCC 384.
  3. In the cases of hearing and speech impaired victims, sign language interpreter should be appointed to assist the victim and the Court for fair and proper communication and for just and fair trial. In the cases of mentally challenged victim, the experts of this field shall be appointed for the fair and just trial of the case.
  4. Every trial should be concluded within 90 day from the filing of the charge sheet.
  5. Examination in chief and cross examination of victim should be concluded on the same day if possible and should be deferred only due to paucity of time and not on any other reason.
  6. The law should minimize the number of times the survivor must testify so that the survivor is not re-victimized/traumatized.
  7. The law should provide the survivor the right to have the proceedings conducted by a lady judge. The High Court should ensure that there should be at least one lady judge in every district to try the cases of crime against women.
  8. The Public Prosecutor should be made answerable to the Chief justice of concerned High Court for the acquittal of the accused where a serious prima-facie case was seen to be made out. Where complicity or negligence of the Public Prosecutor is made out, the license to practice should be suspended.

Evidence

  1. The should provide for broad range of circumstances in which consent is immaterial, such as sexual assault by an individual in a position of authority, such as that in a correctional facility or by individuals in certain professional relationships to the survivor such as an ongoing psychotherapist-patient relationship, intimidation or fraud.
  2. The law should restrict the inquiries into the complainant’s sexual conduct. Rape victim shield rules should be framed for the same.
  3. The statement of the survivor should be deemed to be true in accordance with Section 114A of the Indian Evidence Act. Burden of proving the charges as wrong should essentially be on defense.
  4. In case of visual disability of the victim, medical evidence, if available, should be treated as conclusive proof for identification of the accused.

Mitigating factors / Defenses:

  1. The amendment should clarify that it is no defense that the perpetrator believed that the survivor was not a minor, it is no defense that an underage person consented, and it is no defense that the perpetrator was intoxicated.

Punishments

  1. The law should categorize the type of sexual assault and the penalties respectively. The categories can be following: (a) sexual assault; (b) sexual assault with a weapon, threats to a third party, or causing bodily harm; and (c) aggravated sexual assault.
  2. The punishment under Section 376 of the IPC should be enhanced from a minimum of 7 years to a minimum of 10 years. In cases of aggravated rape (gang rape, rape of a girl under the age of 12, custodial rape), the minimum punishment should be enhanced to life imprisonment.
  3. The punishment under Section 354 of the IPC (assault or criminal force to a woman with the intent to outrage her modesty) must be enhanced from 2 years to 5 years rigorous imprisonment.
  4. The punishment under Section 509 of the IPC (Word, gesture or act intended to insult the modesty of a woman) should be enhanced from 1 year to 2 years of rigorous imprisonment.
  5. In cases where violence is inflicted by the accused upon the survivor in the course of commission of rape and the survivor has suffered grievous hurt, the accused must be awarded life imprisonment. Life imprisonment should be deemed to mean a jail term for entire life as clarified by the Supreme Court. (http://www.thehindu.com/news/national/life-imprisonment-means-jail-term-for-entire-life-sc/article4133231.ece)

Mediation or Reconciliation

  1. The law should not allow mediation in cases of sexual assault at any stage of the process. The law should also not allow perpetrators to avoid punishment by reaching an agreement with the family of the victim/survivor or by providing the family with payment.
  2. The law should explicitly prohibit sexual assault cases from being dismissed upon the marriage of the perpetrator and survivor.  Legislation should state that if a marriage occurs between the perpetrator and survivor, the case should be examined and considered for prosecution as a forced marriage.

Rights of Survivors (Victims)

  1. The law should provide that the survivor may have access, free of cost, to an advocate, who will be available to assist the survivor at all steps of the legal and forensic process.
  2. It should also provide for a comprehensive and free of cost health services which address the physical and mental consequences of the sexual assault, including unconditional tests for sexually transmitted diseases, for emergency contraception, pregnancy tests, and abortion services.

Penalties for non-compliance by authorities

  1. The law should provide for effective sanctions against all authorities who do not comply with the provisions of the law in cases of sexual assault. This should be in line with Section 4 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.

Setting up a Women’s Helpline

  1. There should be a toll free number and a control room in every district, where the women/public can give information of crime against women in any area. This call centre should be handled by female staff only, whose work should be to register any complaint and forward it to the police department for action. A model of the same exists in the State of Gujarat by the name of ‘Hello Sakhi’ which is run by Centre for Social Justice and Kutch Mahila Vikas Sangathan in the Kutch district of Gujarat. (http://www.indianexpress.com/news/friend-on-call/891717/0)
  2. The control room should make a database of such complaints and there should be a quarterly review of such complaints. The area from which maximum complaints are received should be given special attention by the authorities.
  3. The name & details of the caller should be kept secret to avoid any harassment. In ordinary circumstances, the name and other details of the caller should not be given to the police. The control room should not be run by the police department but professionally trained female staffs.
  4. In tri monthly review meeting every OC to whom a complaint has been forwarded from control room should submit the action taken report and if any negligence on the part of OC is found in following or taking action against the culprit then he/she should be penalized.

General suggestions

  1. Committee should be constituted in every Government and public establishment according to the Vishakha guidelines.
  2. The Government should run awareness campaigns about the rights of women and how a woman can approach the authorities in case of violation of their rights.
  3. Gender sensitization workshops should be conducted for official of the police, judiciary and other departments of the Government. School curriculum should also include aspects of gender sensitization. The United Nations Declaration on Human Rights Education and Training adopted by the General Assembly on 19th December 2011 must be implemented.
  4. The Government should bring the police reform at the earliest as in many instances due to political affinity of the accused, the police do not act against him.