Suggestions to reform Women Law

I have sent below Suggestions to Justice Verma Commitee along with my analysis.

1) Enactment of Sentencing guideline

Sentencing guideline should be inserted in IPC in order to minimize disparity in sentences before amending section 376 and 377 to permit death penalty as punishment in rarest of rare cases. Please refer Federal Sentencing Guidelines of United States.[1][1]

2) Registration and maintenance of sex offender’s information in the registry in every district.

In every District it is needed to have sex offenders’ registry. Every sex offender should record his whereabouts in it for certain years as determined by Court.

Hon’ble Committee is requested to recommend the government to appoint study committee to analyze Adam Walsh Child Protection and Safety Act.[2][2] Jacob Wetterling Act. Pam Lychner Sexual Offender Tracking Law and enact similar statute in India.

3) Offense under section 377 of IPC should be made triable by Court of Session and the word ‘carnal intercourse should be replaced with the word ‘carnal knowledge’. [3][3]

Replacing ‘carnal knowledge will increase scope and cover all the possibilities of sexual conduct. Definition of Carnal knowledge should be mentioned. Comparative study of 50 states of United States and other countries regarding definition of rape and carnal knowledge show that definition of carnal knowledge in Virginia Code Section 18.2-63 is flawless and can be incorporated in section 377 of IPC.

4) Statements of prosecutrix should be recorded before judicial magistrate only depending on mental condition of her at that time.

This step will minimize the acquittals due to settlement with prosecutrix, as even prosecutrix gives admissions in her cross examination; trial court may convict accused on the basis of her statement before magistrate if there is strong corroboration of medical evidence[4][4].

5) Provision of adverse inference against accused should be made in Indian Evidence Act in the case of totally different version in cross examination of prosecutrix.

Provision should be made that, if prosecutrix gives totally different version  in her cross examination from her earlier version under section 162 or 164 and become hostile then Court should make adverse inference against accused that he has managed to settle the case with prosecutrix. Court should appreciate medical evidence to the fullest amplitude to convict the accused.

6) Provision in Cr.P.C. for automatic appeal to High Court in acquittal cases of rape.

As it is observed that in many acquittal cases, prosecutrix gives different statements before court from her earlier version before police officers. It is only because of inordinate delay in trial, accused gets enough time to contact prosecutrix and their relatives, he pressurizes and makes involvement of some political person or respectable person and settlement is done. Needless to say prosecutrix gives many admissions in cross examination favorable to accused which results in acquittal.

7) Provision to give right for Complainant to appoint advocate of his choice to assist investigation machinery.

Some prosecution machinery fails due to lacunae in investigation and collection of evidence. Appointing advocate from the starting point of investigation will increase success rate of prosecution. There will be narrow scope for investigation machinery to deliberately keep lacunae under statement recoded under section 162 of Cr.P.C. and any other laws.

8) Section 24 of Cr.P.C. should be amended with object to increase quality of selection procedure of public prosecutors and Additional Public Prosecutors.

It is very horrible that unlike selection procedure of Assistant public prosecutors, there is no written examination, and interview for selection of public prosecutor and additional public prosecutors. It appears to be a totally political post. Only requirement is that 7 years practice in Court of Session is necessary. Needless to say (political player is hidden criteria). It is apparent that many Public Prosecutors, and Assistant Public Prosecutors even do not understand English properly, some are still struggling to understand appreciation of evidence after holding such important post for so many years. Inefficiency of Prosecutors is also prime reason to increase acquittal percentage.

High Court should ask to Court of Session to provide list of efficient prosecutors and direct State Government to make criteria stricter.

9) Sentencing hearing with detailed reasoning of sentence

Our Trial Court Judges conduct hearing on trial and if found guilty, they conduct small hearing to determine quantum of sentence. Quantum of sentence imposed should be reflected by detailed reasoning in the Judgment. Our Trial Court Judges give detail reasoning for conviction or acquittal. But once convicted, they feel 4-5 lines regarding adequate sentence would be suffice.

10) CHEMICAL CASTRATION can be introduced as way of punishment.

But there are many hurdles. In Florida and California this method of punishment is prevailed to certain extent. We live in cultured democratic and argumentative society where unlike United States; uniformity of criminal law is prevailed, hence we must have debate on this topic. We should appoint study committee for analyzing this way of punishment prevailed in Florida and California and its practical acceptability in the light of Article 21, 20 and 14 of Indian Constitution.

11) Fine in IPC should be increased

12) Police reform and medical evidence and forensic evidence agencies reform is discussed for many years but there is no political will to reform due to many reasons including prime reason as ‘underfunding’.

[1][1] Sentencing Reform Act of 1984

Federal Sentencing Guidelines is the product of United States Sentencing Commission, which was created by the Act. The Guidelines' primary goal is to lessen sentencing disparities that research had indicated was prevalent in the existing sentencing system, and the guidelines reform was specifically intended to provide for determinate sentencing. In India, there is sentencing disparity found in capital cases. Letters sent to the President of India by Some Justices to commute the sentence imposed to few offenders is latest proof of it. Hence Sentencing guideline is necessary and helpful for courts to determine quantum of punishment. Please also refer, United States v. Booker 543 U.S. 220 (2005), Blakely v. Washington542 U.S. 296 (2004) to get idea and avoiding successful constitutional challenge against such guideline in India.

[2][2]  Adam Walsh Child Protection and Safety Act

The Act was named for Adam Walsh, an American boy who was abducted from a Florida shopping mall and later found murdered. This Act classifies sex offenders into three tiers and mandates that Tier 1 offenders must update their whereabouts every year with 15 years of registration.  Tier 2 offenders must update their whereabouts every six months with 25 years of registration Tier 3 offenders update their whereabouts every three months with lifetime registration requirements, and failure to register and update information is a serious offenseunder the law. Also refer http://sexoffender.dc.gov/ for instant record of offenders in District of Columbia accessible to public at large.

[3][3] Virginia Code Sec.18.2-63 (C)(ii):- "carnal knowledge" includes the acts of sexual intercourse, cunnilingus, fellatio, anilingus , anal intercourse, and animate and inanimate object sexual penetration.

[4][4] But see Kishan Singh vs. Harmit Kaur and Another ((1972) 3 SCC 280); AIR 1972 SC 468 has held that a statement of 164 Cr.P.C. is not substantive evidence and can be utilized only to corroborate or contradict the witness via-a-vis.

With due respect to Judiciary, I do not understand if statement under 164 is not substantive evidence, if medical evidence is not substantive piece of evidence, then what is substantive evidence in rape cases, chief examination and cross examination of prosecutrix? In many acquittal cases she is managed and it is fact. We need to provide strong solution to curb this practice through legislation

Notes.

1) These suggestions are based on my observations and comparative study of Indian law and U.S. Law. We may disagree on any point, but being a lawyer we can have healthy discussion on it.

2) My observation on suggestion no. 8 is based on current selection procedure in Maharashtra.

 

kamlesh 
on 09 January 2013
Published in Criminal Law
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