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Updated: January 27, 2013 05:08 IST

‘The government has to choose between politics and the Constitution’

Sandeep Joshi
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Gopal Subramaniam: “When you have the death sentence, there could be arbitrary sentencing. That is why we went to the second highest [jail
for the entire natural life].”
Gopal Subramaniam: “When you have the death sentence, there could be arbitrary sentencing. That is why we went to the second highest [jail for the entire natural life].”

Gopal Subramanium, former Solicitor-General of India, a member of the Justice J.S. Verma-led Committee that was constituted last month in the aftermath of the gang rape and murder of a young student in the national capital, to recommend amendments to laws relating to offences against women, speaks to Sandeep Joshi on how it went about its tasks, the rationale behind some of its key recommendations and its expectations of the outcome.

What challenges did the Committee face?

When we started, we thought we were only going to deal with laws related to criminal offences... But we slowly saw that this involved the issue of successful prosecution, investigation and … bringing people to book.

So it took us to the second chapter: why is it that there is certain kind of apathy in relation to crimes against women? That led us to the question: how do we view this offence in relation to women; is it just simply a criminal offence?

We found that it [rape] is a gender-targeted offence — and that’s the most important point. And if it is because a person is a woman, then there is a certain degree of constitutional protection which is also violated. So we wanted this to be treated on [the basis of] constitutional principles. That is how we first began with the constitutional theory of equality.

Then we have to view this in the light of our patriarchal society. We have to see existing trends in our society — where the sex ratio is skewed. We have to take into account female foeticide. We have to take into account negative messages that young girls… get early in their life, sometimes in the rural areas: Oh my god, you’re born! How the boy is treated as superior to the girl. And the process of socialisation of schools being very difficult for girls. There are any number of handicaps through which they have to progress in life. All these lead to a cultural asymmetric…this needs to be corrected.

And this is important as a part of a preventive culture, so that you don’t need to have rapes. And to lead to that position was also within the domain of our [terms of] reference. So we treated the subject from a manifold point of view. From the point of view of teaching children, of removing stereotypes of masculinity in the mind to enable even men to feel compassionate, caring.

We’re moving towards a new India which needs to be liberated… transparent, which needs security.

What are they [youth] asking for? What are the women asking for? They’re asking for a simple translation of their constitutional guarantees in real life – which is that they must have security of person and space. That, I think, is a constitutional obligation of the state. So we decided to devise a method by which this could be ensured.

Public sentiment was in favour of death for rape. Even the government suggested it would consider capital punishment in the rarest of the rare cases. But the Committee did not recommend that.

The question is that if you have a rape followed by murder, the death sentence is available, [under Section] 302 [of the Indian Penal Code]. But [a person convicted under] 376 going straight to death sentence is very different. We did debate this closely, and we came to the conclusion that there should be no politics of reprisal… when we actually alter punishments.

Women’s organisations were content with life [sentence] with remissions — that is, 14 years. They did not ask for enhancement. We’re the ones who said: no, we have to go somewhere further to make it more deterrent... But we stopped short of death.

Women said we cannot disown the fact that even the victim is a part of society, and so is the accused… They showed far-sightedness and maturity in recommending to us this course.

Another point is that when you have the death sentence there could be arbitrary sentencing. That is why we went to the second highest [jail for the entire natural life].

The Committee recommended a review of the Armed Forces (Special Powers) Act. Do you think the government will touch this sensitive issue?

It’s not a sensitive issue at all. The armed forces are highly respected. But we’re not talking of the armed forces in general; we’re talking of some individuals who commit crimes of rape. Why should not they be held accountable? I don’t think this is any reflection on the armed forces.

More importantly, it is [about] the culture of militarisation. When armed [forces] personnel commit rape, it is a culture of militarisation. Rape is one of the techniques in militarisation, and you should not practise militarisation with your own people, it’s terrible.

The Committee has talked about diktats of khap panchayats and religious leaders and their anti-women sermons, and said the government does not touch them due to political reasons. How is this affecting society?

The government has to choose between politics and the Constitution. The Constitution means the people of India. This is the message the Committee wants to give.

You want to play politics, but remember, politics is not about defeating the Constitution and hoodwinking the Constitution. Politics is [meant] to be compliant with the Constitution and to care for people. If you don’t want to care for your people, then what kind of care are you showing? When a young man and woman fall in love and want to get married, they’re so brutally treated by these institutions.

The Committee has touched upon the issues of stalking and ‘eve-teasing’ in a strong manner, and recommended that these be made punishable offences.

We’ve come to know how our women in rural areas drop out of schools and colleges because of stalking… and how much harassment they undergo. There are so many things which are not reported in our society. Young girls commit suicide because of stalking. So we have to make a law.

We have enough rules and laws, the problem lies in implementation. How do we address this?

We seek psychological transformation from political institutions, from the police, from civil society. This psychological transformation is possible. There have been iconic police officers… a constable was an honest man just because he saw the top man was honest. You need to have heroes in the services.

We’ve to create a culture of recognising honesty. The recognition of honesty by the government must be the most fundamental value of governance in accordance with the Constitution. We must understand this truth. Honesty is the bedrock of civilisation.

Among your recommendations, which are the ones that should be implemented immediately?

The criminal law amendment bill and the suggestions we have made should be done immediately. There should be no immunity to police officers or army officers in cases related to rape. [There should be] zero tolerance for offences relating to trafficking.

The Committee was not very appreciative of the response of the government and the police departments to it...

DGPs and others did not make available information because nobody [thought] this Committee [would] dig deep… to find a solution. So, even the expectation of the government itself of such a committee is that it will act like some sort of a whitewash committee.… They shouldn’t have thought this committee is simply a whitewash or will not go deep…

There have been various reports and recommendations from committees and commissions on police reforms, safety and security of citizens, legal and electoral reforms. Do you think the government will implement your recommendations?

This report talks of the anger of India… we’ve taken into account a certain measure of public opinion. If the government decides to ignore the recommendations… we have cautioned them they’d be doing so at their own risk.

Speaking for myself, the government will respect this report. We’ve put the report in the public domain. We welcome criticism. We’ve touched new ground, we’ve made far-reaching changes. It’s perfect to criticise in a democracy, but we made our best effort.

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Death sentence has no place in a civilized society,especially when a very large section of it believes in God Almighty. On all these counts thinkers and policy makers in this country should ponder over abolishing altogether death sentence for any crime whatsoever. Reasonably long imprisonment with arrangements for a totally scientific training and indoctrination regimen during imprisonment where experts from various fields including the religious field try to train the prisoners so as to make them good citizens before their release from captivity.

from:  K.Vijayakumar
Posted on: Jan 27, 2013 at 15:19 IST

Life sentence should mean jail until death, not 14 years or earlier or pardoned release for Gandhi,s birthday or Republic Day> Women,s organizations which plead for humane outlook for rapists do not undertake to protect women. The duty of protecting women in public places at least, if not in the privacy of homes, is the responsibility of the state and not that of bleeding heart liberals.

from:  s mohsn
Posted on: Jan 27, 2013 at 13:56 IST

I still think the committee has shied away from making rape a non-
bailable offence, and extending the 7 year term to something more
substantial. These talks of institutional transformation and honesty
sound good, but to instil that fear of law needs even more stringent
laws. Though they've done a really commendable work, now we gotta wait
and watch for the political intent, which tends to remain the final
verdict, above any judicial process (unfortunately)...

from:  Palash Shrotriya
Posted on: Jan 27, 2013 at 11:47 IST

A very good start to a complex problem. The Verma panel has at least been professional in their approach. It is quite another matter what the govt's intent would have been. But now comes the real challenge in Indian society; that of implementation. The fate of this report is anybody's guess when hundreds of others preceding it still await deliverance.

from:  Manjesh
Posted on: Jan 27, 2013 at 09:45 IST

Kudos to the Committee. Thank you very much, Sir, for your crystal clear exposition of the
various issues involved. Hope the Government wakes up and chooses the Constitution!

from:  T P Srinivasan
Posted on: Jan 27, 2013 at 08:32 IST

constitution, they say can be amended. politicians we know can't be mended

from:  balvinder singh
Posted on: Jan 27, 2013 at 08:21 IST

Unfortunately the help from the keepers of the laws based on constitution is available to the wealthy ,who can file case in court and sustain this.In a recent case involving a marital dispute, the mother-in-law has had to approach supreme court for bail in this week , where she has to shell down Rs 50000 as fee to the advocate.We can safely understand where we stand!

from:  atis
Posted on: Jan 27, 2013 at 07:54 IST

There is a fundamental flaw in the recommendation of this committee. Suppose Nirbhay had not died, but continued to live in a comatose condition for the rest of her life. Her rapists would only be given a jail sentence for the rest of their natural lives. In jail, they would be given food and medical care and would be allowed to meet visitors. So their quality of life would be far better than that of the victim. Is this what we call punishment where the guilty are better off than the victim?

from:  Viswanath
Posted on: Jan 27, 2013 at 06:09 IST

Rape is a heinous and barbaric crime perpetrated by a creep against a female or male. Sexual abuse against small boys have also come to light.In many rape cases the victim becomes mentally deranged and depressed throughout her/his life. In India in the case of life imprisonment of a person, he may become free after sixteen years if his conduct is good during his sentence. Just like United States persons punished for sexual abuse have to compulsorily wear electronic anklets and their movements should be tracked by cops 24x7. National data base should be created listing the names of sexual abusers with their photos to warn the people. There should be no mercy towards rapists.

from:  Nathan
Posted on: Jan 27, 2013 at 04:20 IST
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