Open Letter to Dr. M. Veerappa Moily to amend laws on sexual violence in India sign now

Open Letter to Dr. M. Veerappa Moily

The Honourable Minister for Law and Justice
Government of India
4th Floor, A-Wing,
Shastri Bhawan,
New Delhi-110 001
Email: [email protected]

We, the undersigned welcome your statements on the Ruchika Girhotra case, that the case will be re-visited; the rule-of-law should not be interfered by anybody and that you are thinking of ushering a law to fast track sexual offences cases. We welcome the initiative you have taken to usher changes in the law to ensure justice to victims of sexual violence.

We are writing to you to emphasise, therefore, that merely bringing in a law to fast track cases through the proposed through the proposed Sexual Offences [Special Courts] Bill, 2010, to make character evidence illegal or to make sexual offences cognizable will not solve the difficulties, beyond the immediate context, furnished by the endless histories of those victimized by sexual violence.

On the point of redressing delay, it has been the experience of the Domestic Violence Act that stipulating time alone does not mean that cases are heard in time. Nor do special courts, as we have seen in the cases of communal riots- more accurately acts of ethnic cleansing Indian-style, necessarily ensure justice, since these do not take into account the problems faced by survivors in testifying to violence.

Unless the definitional and substantive aspects of the rape law and associated set of laws which deal with sexual harassment, molestation, unnatural offences, kidnapping and abduction of girls and women in everyday and extraordinary contexts are amended, the proposed law to fast track sexual violence cases will remain historically a hollow gesture.

We are therefore disappointed that you have not yet invited a public discussion on the substantive and definitional aspects of the Sexual Assault Bill which has been pending for many years and has been a longstanding demand of the womens movement. As you would surely know the 172nd Law Commission Report [dated March 25, 2000] has pointed out the lacunae in the definitions of rape as a sexual offence as per the current definitions of rape in the IPC. Thereafter there was a move to evolve a comprehensive law on sexual violence, in consultation with all womens groups. However, we do not know why the process of drafting the Sexual Assault Bill was stopped, nor do we fully know why the said Bill has not been shared with womens groups working on the issue and further, why the Law Ministry has not taken up this Bill forward.

While the existing laws have manifold problems, we list some issues here, in the hope that these will inform your concerns for law reform.

1. Sections 375 and 376 IPC define rape as non-consensual penile penetration of the vagina. The current definition does not include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration.

2. Section 375 IPC legalises marital rape of wives above 15 years, by stating that sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape. Marital rape should be a crime.

3. The definition of rape does not take into account the experiences of children who are sexually abused. Sexual abuse of both girls and boys is tried under section 377 IPC as unnatural sexual offences but these are not named as forms of sexual violence. The culture of the courtroom remains patriarchal and adult. Questions to the victims, not only blame and humiliate victims, there are a number of pre-trial methods of discouraging children and women from pursuing the complaint. The need for a separate law on child sexual abuse with distinct procedural law and evidentiary rules cannot be overemphasized.

4. The current definitions by providing a clause to mitigate minimum punishments results in lower sentences. Often adequate and sufficient reasons to mitigate a sentence are not recorded or are granted on spurious grounds.

5. Custodial rape, gang rape, rape of dalit and tribal women and children are rarely prosecuted. Victims are forced to turn hostile. In such cases, by bringing in laws to punish perjury, you will ignore the contexts of shame, harassment, intimidation and violence against victims who choose to depose.

6. Sexual violence cases are not registered. If they are registered, the police often produce a weak case. Evidence is not collected properly, test identification parades not carried out, and a host of pre-trial techniques of intimidation prevent complaints.

7. Delay becomes a resource for the accused to ensure an acquittal. It leads to ignominy and harassment and may force a woman to commit suicide. However, if special courts and special prosecutors are appointed, then you should minimally ensure that they receive special training on how to deal with sexual violence trials.

8. Although sexual character is irrelevant to sexual violence trials, the character of the victim continues to inform the cross-examination.

9. The Prevention of Atrocities (SC and ST) Act is often not applied. Most cases are seen as mere rape cases rather than atrocity cases. Even gang rape cases take up to 15 years with most prosecution witnesses turning hostile.

10. In cases where rape is read with the PoA Act, victims face tremendous opposition from the legal system. There is no witness or victim protection program.

11. Most victims of rape have to leave their neighbourhoods once rape complaints become public. There is no program for rehabilitation of rape survivors.

12. During trials victims are routinely humiliated.

13. Appeals are not filed by the prosecution in appellate courts. We demand that review panels should be set up at the state level. The review panel should see if appeals against acquittal need to be filed and share the decision and its reasons with the complainant.

14. In the formulations of the Communal Violence Bill, the trauma and forms of sexual violence Muslim women and children suffered in Gujarat or Christian women faced in Orissa has not adequately taken into account the prosecution of rape as a technique of genocide/crime against humanity.

15. Rape has been used as a device of counter-insurgency and now anti-terrorist operations and time has come to ensure that a proper legal procedure is in place for women victims of this form of violence.

16. The procedures for court martial and its relation with constitutional law in case of rape by security forces ought to be reviewed from the viewpoint of women who are sexually violated.

17. Defence lawyers also are not bound by any ethical guidelines nor punished for evoking the victims character as relevant. Medical tests, which are totally unscientific, such as the two finger test continue to be used, and these allow doctors to state whether a woman was habituated to sex. This test allows character evidence to disqualify a victims testimony. Change in the structure of humiliation which typifies rape trials is not possible unless medical jurisprudence textbooks and procedures are changed.

18. There are very few state resources to fight sexual violence. The state run shelters are not safe for women as you know from the Agra Home case, and many other such instances. We need a commitment from the government to put aside resources to help victims of sexual violence to get justice, rehabilitation and treatment. As well as systemically review each state run shelter to ensure that these are safe for women.

You must change a range of laws which redress rape, child sexual abuse, sexual harassment, molestation, stalking, parading, kidnapping and abduction. As of today, a minor, cannot legally resist the violence she meets in her natal home except for the PWDVA law which provides civil law remedy against domestic violence. Parents file false cases of rape, abduction and/or kidnapping when adult women choose their partners themselves. The police interpret the right to choice of an adult woman to get married according to her wishes by applying criminal sections against the couple and this lends support to the position that women lie about being raped whereas it is often the case that women are forced by their parents and the police to lodge false cases against their partners.


Section 354 IPC does not redress sexual harassment of women in public or private spaces. It assumes that only some women and children have modesty and are seen as deserving the protection of law. The principles outlined in the Vishakha judgment are clear that sexual harassment denies the right to life and liberty. We need to develop a gradation of sexual assault which squarely name sexual harassment, molestation, stalking, parading, stripping as sexual violence [not amounting to rape]. Women suffer from a range of sexual violence from rape to sexual harassment by words or gestures [section 509 IPC]. Once again, we must remind you that the way victims experience these forms of assault must inform the way the law is named i.e., as sexual violence. We need to codify other forms of sexual violence and penalise them, otherwise anything short of rape as defined in s 375 and 376 IPC falls under section 354 IPC.

We request you to call for a time-bound national discussion in ways that democratically advance law reform. We hope that this government is serious about legislating against and prosecuting sexual violence in India.

We demand that the law regarding sexual violence is amended at the earliest, hopefully in the next session of Parliament in the furtherance of its supreme and non-negotiable constitutional responsibility furthering the need of strict and exemplary and strict action against any and all state functionaries who conspires to deny justice to victims of sexual violence. We need scarcely to remind you that this remains a basic obligation of the Union of India as State-Party to the CEDAW.

Needless to add, that womens groups remain available for discussion with you and your officials as our common task consists in taking womens rights seriously as human rights.

Initiated by:

1. Saheli Women's Resource Centre, New Delhi, [email protected]
2. MARG, New Delhi, [email protected]
3. MAJLIS, Mumbai, [email protected], [email protected]
4. Forum against Oppression of Women, Mumbai, [email protected], [email protected]
5. LABIA, P.O. Box 16613 Mumbai 400 019
6. Nirantar Resource Centre, Delhi, [email protected]
7. Partners for Law in Development, Delhi, [email protected]
8. ANHAD, Delhi, [email protected]
9. RAHI Foundation, Delhi, [email protected]
10. VIMOCHANA, Forum for Women's Rights, [email protected]
11. JAGORI, New Delhi, , [email protected]
12. Stree Jagruti Samiti, Mitr Sanketa, [email protected]
13. Sangat, Delhi, [email protected]
14. Women's Research & Action Group, Mumbai
15. Mahila Jan Adhikar Samiti, Rajasthan, [email protected]
16. Aman Biradari, [email protected]
17. Centre for Social Justice, Ahmedabad, [email protected]



And

1. Akhila Ramnarayan, Assistant Professor of English, University of Dayton
[email protected]
2. Ammu Joseph, independent journalist, [email protected]
3. Anand Chakravarti, sociologist, [email protected]
4. Anita Abraham, Advocate, [email protected]
5. Anuradha Bhasin Jamwal, Executive Editor Kashmir Times, [email protected]
6. Arjun Rajkhowa, St. Stephen's College, DU, [email protected]
7. Ashley Tellis, IIT, Hyderabad, [email protected]
8. Ayesha Kidwai, JNU, [email protected]
9. Charu Rawat, National Law University, Dwarka, New Delhi, [email protected]
10. Devangana Kalita, Miranda House, [email protected]
11. Divya Chawla, Ist year, National law University, Delhi, [email protected]
12. Farah Naqvi, Writer & Activist, [email protected]
13. Flavia Agnes, Majlis, Bombay, [email protected]
14. Gagan Sethi, Centre for Social Justice, [email protected]
15. Harsh Mander, Aman Biradari. [email protected]
16. Imrana Qadeer, JNU, [email protected]
17. Indira Pancholi, Mahila Jan Adhikar Samiti, Rajasthan, [email protected], [email protected]
18. Indu Jain, Janaki Devi Memorial College, Delhi University, [email protected]
19. Janaki Nair, JNU, [email protected]
20. Jinee Lokaneeta, Drew University, US, [email protected]
21. Jyoti Punwani, journalist, Mumbai, [email protected]
22. Kabi John, [email protected]
23. Kalyani Menon-Sen, independent researcher. [email protected]
24. Kamala Bhasin, Sangat, [email protected],
25. Kamala Sankaran, Law Faculty, University of Delhi, [email protected]
26. Manisha Sethi, Jamia Teachers' Solidarity Association, [email protected]
27. Mridul Eapen, [email protected]
28. Naina Manjrekar , Miranda House, [email protected]
29. Nandini Manjrekar, Tata Institute of Social Sciences, Mumbai, [email protected]
30. Nupur, Centre for Social Justice, Ahmedabad, [email protected]
31. Pamela Philipose, Director, Women's Feature Service, [email protected]
32. Pratiksha Baxi, JNU, [email protected]
33. Rajashri Dasgupta, Himal Southasian magazine, [email protected]
34. Sahana Basavapatna, Lawyer/Researcher, Delhi, [email protected]
35. Sanjana Mohanty, first year student of law, National Law University, Delhi, [email protected]
36. Saumya Uma, Executive Director, Women's Research & Action Group, Mumbai, [email protected]
37. Seema Kazi, Researcher, Delhi, [email protected]
38. Shabnam Hashmi, Anhad, Delhi, [email protected]
39. Sharmila, Mumbai, [email protected]
40. Shrimoyee Nandini Ghosh, Lawyer, JNU, [email protected]
41. Subhashini Shriya, Miranda House, [email protected]
42. Uma Chakravarti, Historian, [email protected]
43. Vinita Bhatia, St. Xaviers College, Mumbai, [email protected]
44. Vrinda Grover, Advocate and Director, MARG, [email protected]
45. Lena Ganesh, Mumbai, [email protected]
46. Shilpa Phadke, Tata Institute of Social Sciences, Mumbai, [email protected]
47. Prof. (Dr.) Ved Kumari, Chairperson, Delhi Judicial Academy, [email protected]
48. Dolly Daftary, Doctoral Student, Washington University in St. Louis
USA, [email protected]
49. Ujjwal Kumar Singh, Political Science, Delhi University, [email protected]
50. Anupama Roy, CPS, JNU, [email protected]
51. Enakshi Ganguly Thukral, [email protected]

Annexure to the Open Letter to Dr. M. Veerappa Moily

We bring to you some specific cases and issues for urgent intervention below, and appeal to you to set up a panel to review all ongoing sexual violence cases urgently:

1. The Case of Bhanwari Devi: Even after almost 17 years, Bhanwari Devi has got no justice despite a vibrant and courageous campaign against the trial court judgment, which acquitted the upper caste rapists, on the ground that upper caste men would never rape a lower caste woman [seeThe State vs. Ramkaran and Others, 15-11-95, Jaipur]. Why has the Rajasthan High Court not heard the appeal? Will the law ministry review Bhanwari Devis case?

2. The Case of Yad Ram v State of Rajasthan: Will the Law Ministry take action in a recent case where the defence lawyer asked the victim of rape as to in what posture she was raped? Will the Law Ministry be concerned that the victim was made to lie on the bench available in the trial Court to demonstrate her posture? In Yad Ram v State of Rajasthan , the High Court remarked on the impropriety of trial court by stating that while the victim was cross examined, the trial Court was sitting as a silent spectator and did not effectively control the recording of evidence in the Court. Yet there is no action that follows this shameful case.

3. Cases under the PoA Act: We would like to bring to your attention that in the Khairlanji case, the PoA Act was not applied. Rape was not prosecuted. In many cases, dalit and tribal women have not been given the protection of the law. For example:

- Are you aware of Sahjad Ansari v State of Jharkhand which details a chilling account of gang rape, torture and homicidal death of a tribal young woman in November 1992 in Bihar (now Jharkhand)? After gang raping the 25 year old victim, the assailants tied the neck of the prosecutrix with the belt and dragged her towards the coal mine and dumped her on the burning coal, thinking she would be burnt to death. The accused succeeded in getting anticipatory bail, and even mounted a constitutional challenge of the PoA Act! The High Court upheld the sentence and conviction nearly after 15 years! The prosecution relied on the sisters testimony, investigating officer and the statement of the doctor who conducted the post mortem, since more than half of the witnesses turned hostile to the prosecutions case. Yet again it was the dead victims sister who had the courage to withstand the criminal legal system for more than 15 years.

- In Orissa a young tribal girl was brutally gang raped by three men while she was cycling back home in 1992. Justices Pasayat and DM Patnaik upheld the conviction of gang rape but did not find merit in the trial courts conviction on the grounds of sexual exploitation under the PoA Act. Unlike later judgments of gang rape of tribal women reported from Jharkhand, here, section 3 (v) of the PoA Act was not applied. The learned judges reduced the sentence from life imprisonment to seven years rigorous imprisonment on the grounds that these young men were in pursuit of their first tests of sex without any violent intention (Fanibhushan Behera, Jeet Shankar Bohidar and Dinabandhu Behere v State of Orissa MANU/OR/0255/1994 at para 17).


Why does the judiciary treat the gang rape as an instance of natural male sexuality whereby men lose their virginity through brutal violence on women?

Not only is gang rape an aggravated sexual offence where minimum sentence must be mandatory but the rape of tribal and dalit women when read with the PoA Act should surely be taken even more seriously?

There is a serious need to review the policy of sentencing that is followed by the judiciary wherein less than the mandatory sentence, is a norm rather than an exception.


- The PoA Act not been applied in the instances of sexual violence against women from the North Eastern states in Delhi [see http://www.nehelpline.net]. Why?

4. Custodial Rape: In a case where the media does not want to go Dantewada 4 tribal women who had been raped by policemen have been beaten by the police, were recently illegally detained and threatened to withdraw the cases of rape lest their husbands be killed as naxalites. Will you allow the police of this country to use naxalism as an excuse to rape and/or protect policemen who rape with impunity? Will only those cases which get reported in the media meet your intervention?

5. Communal Violence (Prevention, Control & Rehabilitation of Victims) Bill, 2009
The CV Bill does not create new offences which would criminalise sexual violence as a mass crime. This would not account for the trauma of the sexual violence Muslim women and children suffered in Gujarat or Christian women faced in Orissa has not adequately taken into account the prosecution of rape as a technique of genocide/crimes against humanity. The victims in Gujarat, and Orissa, continue to suffer in ignominy. They have been forced to compromise. Please note that there is sufficient documentation of sexual crimes such as public and mass acts of sexual violence including cutting off breasts and uterus, forced nudity, stripping and parading women naked, forcible pregnancy, exhibiting sexual organs in the presence of women and mutilation of womens genital organs. Simply by reading the CV Bill with the existing provisions of rape as a crime would be grossly inadequate since it would not redress the systemic use of sexual violence in communal situations. You have not redressed the violence of rape during conflict situations in this Bill. Why?

6. Exceptional Laws: There was no justice to Manorama nor was the Indian state ashamed by the protests that followed her rape and murder. There has been no justice in the Shopian case. There is no review of medical ethics in cases where post mortem reports are fudged. Surely it is high time that you review the procedures for court martial and its relation with constitutional law in case of rape by security forces. Why is the Indian state so tolerant of a rapacious security force?

7. Witness/Victim Protection Program: We bring to you the details of a case where a young dalit woman was forced to take her own life. You ought to know that on 11-4-2004, a dalit working girl employed in Rapid Road Auto Agency, Sanjay Palace, Agra was gang raped. Thereafter, she lodged an F.I.R. on 14.8.2004. When the rapists, who were let off on bail, threatened the victim, the family moved from Agra to Aligarh. The accused continued to threaten the victim and her family to force a compromise else she was threatened that she would be raped again and her father & brother murdered. The victim committed suicide on 22.7.2005. An FIR was lodged on 23-7-2005 under the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act - Section 3(2)(V); and Indian Penal Code - Sections 120B, 306, 376 and 506 . The Court rightly held that the applicant has misused short term bail granted by this court consequently, the prosecutrix committed suicide, in which applicant and other co-accused are named as accused under Section 306 I.P.C. therefore, the applicant does not deserve to be released on bail. There is no witness or victim protection program. What is the liability of the state in such cases where the state is unable to protect the witnesses, when the courts gives bail even when the case is filed under the PoA Act and when the victim is forced to die? Is the doctrine of vicarious liability of the state not applicable when the law itself creates conditions which force victims to take their own life?

8. Vishakha Guidelines: Further, Vishakha guidelines arent implemented in the police force, hospitals, bureaucracy and even in the courts is this not contempt?

9. Character evidence: Even though character evidence is no longer admissible, it continues to inform rape trials. Even in the Ruchika Girhotra case, there was an attempt to comment on her character. Defence lawyers also are not bound by any ethical guidelines nor punished for evoking the victims character as relevant. Medical tests, which are totally unscientific, such as the two finger test continue to be used, and these allow doctors to state whether a woman was habituated to sex. This test allows character evidence to disqualify a victims testimony. Change in the structure of humiliation which typifies rape trials is not possible unless medical jurisprudence textbooks and procedures are changed.

See illustrations below:
All medical jurisprudence text books hold that false charges of rape are common in India. Modis (2002) textbook on medico-legal jurisprudence illustrates this argument as follows:

Modi saw a case in which the father thrust his thumb forcibly into the vagina of his six-year-old daughter in order to bring a false charge of rape against his neighbour, who was his enemy and lacerated the posterior part of the vagina and the posterior commissure (Modi 2002:506).

Surely if a father forces vaginal injury on a six year old, this amounts to an act of sexual violence, from the point of view of the child?

- It is commonplace to find in medico-legal certificates the information: P/V (Per Vagina): two fingers admissible or inadmissible as the case be - these are further transcribed as - habituated to sex or used to sex in court. The category of habituated is used against raped women to suggest they lie about rape. This is extended to child sexual abuse cases too [see The State of Maharashtra v. Abdul Sattar, Sessions Trial No. 39 of 1985]

- Many courts and defence lawyers continue to argue that the degree and depth of penetration are relevant despite appellate rulings which clarify that even slightest penetration is sufficient to define rape.


We demand that you set up a review of all medical jurisprudence textbooks and forensic/gynaecological techniques.


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